I am back teaching my 6th semester at George Mason University’s Scalia Law School. I teach Alternative Dispute Resolution in the Fall and Mediation in the Spring. Last week was my first Spring class, and I am excited that my students are highly engaged and ready to participate in this experiential class. I am preparing for tomorrow’s class on principled negotiation, also known as cooperative or interest-based negotiation.
Competitive Negotiation, also known as positional bargaining, assumes the purpose of bargaining is to obtain the best possible economic result, usually at the expense of the other side. The goal is to pay as little as possible or to obtain as much as possible. Negotiation is viewed like litigation – someone must win and someone must lose.
Adversarial Negotiation is a more aggressive and competitive model than the competitive approach. Adversarial negotiators may provide the other side with misleading clues, bluffs, and distorted facts for the purpose of creating incorrect conclusions that are beneficial to the competitor. Tactics include: using theatrics, asking for more than you expect to get, never saying yes to the first offer, flinching at proposals, using threats and ultimatums, saying “you’ll have to do better than that”, creating an uncomfortable environment, and giving false deadlines, among other strategies.
Cooperative Negotiation can be used effectively on almost any type of conflict. According to Roger Fisher and Bill Ury, positional bargaining does not tend to produce good agreements because it is inefficient, respective interests are neglected, ego tends to be involved, and it encourages stubbornness thus harming the parties’ relationship.
In interest-based negotiation, Fisher and Ury talk about the need to separate the people from the problem, focus on interests not positions, invent options for mutual gain, and insist on using objective criteria to resolve differences. Know your Best Alternative To A Negotiated Agreement or BATNA – your alternative course of action a party can take if negotiations fail and an agreement cannot be reached.
Watch this you tube video for more information on how principled negotiation can be used on almost any type of conflict: https://www.youtube.com/watch?v=EKHg9H0G6go.
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Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.