As I clear my desk off after having completed a major project, I’m looking through the stacks of routing materials that have been awaiting my attention. In the November 2009 issue of Alternatives to the High Cost of Litigation, Charlie Craver (George Washington Univ. Law School) has an interesting piece discussing negotiation styles. He critiques the conclusions of the two extensive studies of negotiaton styles – one by Gerry Williams (BYU) and the other by Indisputably’s very own Andrea Schneider – and their respective conclusions that there are two primary negotiation styles, the Competitive/Adversarial and the Cooperative/Problem-Solver. After looking at the data, he believes that there is a hybrid of the two styles, which he calls the Competitive/Problem-Solvers. Their primary objective is to maximize their own sides’ returns (the competitive side), and their secondary goal is to maximize joint returns (the problem solver side). In other words they are “WIN – win” negotiators.
Craver says that these negotiators recognized the importance of the negotiation process, and of treating their counterparts with respect and professionalism. Indeed, he believes that these lawyers may have been so successful in using their “problem-solving” tactics that they induced others to characterize them as cooperative instead of competitive. He believes this Competitive / Problem-Solver style incorporates the optimal aspects of the cooperative and competitive styles.
I find Craver’s analysis intuitively appealing. I say this as someone who thought the evaluative – facilitative mediation debate wasn’t nuanced enough, as good mediators have to be good at each style Riskin identified in his famous grid article. Furthermore, I viewed the grid to be most helpful as a snap-shot in time. “What’s the mediator doing now?” Being either A or B in a mutually exclusive world of negotiators doesn’t give us the shades of gray that each of us see on a regular basis. Andrea’s analysis recognized this as her cluster analysis results in a split the Problem-Solving negotiators into subsets – the True Problem-Solvers and the Cautious Problem-Solvers, but this grouping doesn’t account for the smiling assassin that Craver conjures. One other interesting piece is that Craver’s suggestion keeps Andrea’s primary conclusion in tact that uber competitive negotiators (hard-bargaining jerks) tend to be more ineffective than effective. See also Tough Guys Finish Last: the Perils of a Distributive Reputation, 88 Organizational Behavior and Human Decision Processes.
Andrea, your thoughts?
Context does seem to have a big impact on what is effective. There are different pieces of that.
Some of the more important dimensions of context seem to be how many negotiations are likely to take place involving the same or overlapping players in the long run (and the related matter of how likely that negotiated matters are to be reopened), the significance of the stakes for the players (a $100,000 dispute could be make or break for one side, and a triffling matter for the other), and the social status (in absolute and relative terms) of the parties.
Deception, or at least, intentional non-disclosure of material facts, is a strategy that is much more common in one time encounters, particularly when there is a low status party and high status party involved (indeed, the lack of disclosure may be mutual).
A very “entitled” or aggressive approach may be particularly effective when the stakes are low for one of the parties and they are of opposite status (either a high status person asking for a slight favor from a low status person, or a low status person claiming urgency regarding a matter of low importance to the high status person), particularly when it is a one shot deal.
One way to explain the perception of rising incivility in the bar is that the lawyers themselves, who used to be repeat players are now increasingly (especially in urban areas in civil litigation) infrequent players, and that differences in status that were once limited mostly to the parties are increasingly shared by the lawyers for those parties. The changing environment may be discouraging the relatively transparent and balanced problem solving approach that might prevail.
You see contexts that favor the problem solving approach in situations like big brokerage companies resolving disputes in their notes over the terms of particular deals (the work is rarely done in writting due to volume and urgency constraints), negotiations between prosecutors and privately retained criminal lawyers with busy practices, and negotiations between insurance companies over subrogation in accidents where neither real party in interest has any real exposure or uninsured loss.
The proto-typical case for the aggressive style, non-transparent negotiation is perhaps the kind of case that Senator Edwards has talked about litigating, a big dollar for the client product liability case brought by an individual plaintiff with serious injuries brought by a then not as sucessful as he ultimately became trial lawyer against a big manufacturing company with insurance and a large law firm defending it, that may not seem like a big dollar case to the defendant since it involved one injured person rather than a class action. (That case didn’t settle at all, it went to trial, despite surely many opportunities for settlement along the way). These are the kinds of cases also known for hide the ball discovery issues.
Hi all–well, first, I was grateful for this blog post because it reminded me that I had not been receiving Alternatives this fall (not sure what happened) and had missed Charlie’s article. So, thanks for that! Second, upon reading the article last night, I do think that that we have a lot to talk about (do I hear symposium, anyone?) Charlie argues for a distinction in styles called the competitive problem solver with a WIN-win approach. And I agree largely with much of what he says.
So let me see if I can clarify. A true problem-solver (not one of the original two styles outlined by Williams but rather one found in my cluster analysis of what lawyers actually do in negotiation) is a negotiator who is just as assertive as empathetic, someone who is just as interested in their own interests as they are interested in hearing about the other side’s interests. A truly effective negotiator, and here is where Charlie and I clearly agree, must be protective of their own interests and must be interested in maximizing their own gain. At the same time, and here is where we perhaps differ, the most effective negotiators are also willing to work with the other side. I am unclear from Charlie’s piece if he is also suggesting that the most effective negotiators are deceptive or manipulative about their goals or competitiveness and, with this point, I would disagree. I actually don’t think that a good negotiator needs to hide this. Good problem-solvers also make it easier for the other side to agree with them–they are forthright, clear, persuasive, and present their strongest case.
Lastly, I agree that two styles (or even three) should not be used as some template by which all negotiators must act. Most negotiators move through many styles and approaches–and they should–depending on the case, context, other side etc. Most importantly, we need to teach a broad skill set so that students can employ whatever approach is needed and are not limited to a single approach based on their limited skills.
When we teach negotiation at the Straus Institute, we always emphasize that the differentiation between distributive and cooperative bargaining is artificial and for teaching purposes only, and that there is a continuum between these two extremes. we also point out that even in the most collaborative approach to negotiating, in the end there is still a distributive portion that cannot be ignored: after having jointly “expanded the pie”, it still needs to be divvied up.
I did not (yet) read Craver’s article, but it appears from your article that it ties in nicely with the Straus theory on negotiations.