The Language and Psychology of Negotiations Sayyed Mohsen Fatemi , Ph.D. Harvard University University of Toronto smfat

1. The Language and Psychology of NegotiationsSayyedMohsenFatemi, Ph.D.Harvard UniversityUniversity of Torontosmfatemi@wjh.harvard.edu

2. Time, Complexity, Creating and Claiming Values

3. Tactics for Success: Find Common Interests by Asking the Right Questions! • Open-ended: “What were you hoping to settle today?” • Leading: “Don’t you think this proposal meets one of your goals?” • Clarifying: “Can you postpone collecting that fee untilnext year?” • Gauging: “How important to you is the 24-hour service guarantee?” • Seek agreement: “If we agree to your delivery terms do we have a deal?”

4. Common Nonverbal Behaviors

5. Tactics for Success:Practice Active Listening • Active Listening = focus on what the other person is saying, understanding both the content and emotion

6. Practice Tips for Active Listening #1 Maintain eye contact #2 Think only about what they are saying, don’t formulate a response #3 Take notes and use them to reflect their thoughts back #4 Pay attention to body language #5 Confirm that you heard and understand by summarizing – ask reflective and probing questions

7. The Four Ears of Listening

8. Creating Persuasive Arguments • Three keys (according to Aristotle): • Passion (Pathos): focus on emotions • Example: appeals to fairness, reciprocity • Logic (Logos): focus on information • Example: mathematical estimates, pros and cons of an action • Character (Ethos): focus on the person • Example: Cite their reputation for honesty, fairness, authority

9. Using Persuasive Language • Tactics that make an argument persuasive: 1. Metaphor: A powerful way to convey meaning from one thing to another 2. Humor: Can create a positive atmosphere, or diffuse a tense moment 3. Using props: Visual people respond better to images and words than verbal communications. Props can focus the discussion easily 4. Storytelling: Conveys the interests behind the position 5. Focus on other party’s perspective: Use either a central route – encourage content, or peripheral route – using throwaways, friendly/flattering behavior

10. Tools for Persuasive Communication • Successful negotiators create leverage through persuasive • Verbal communication: direct single dialogue to present a position, followed by silence (use tone, pitch, and volume of your voice to convey meaning) • Nonverbal communication: can add emphasis through body language, facial expressions, actions • Kinesis: posture and physical movements (standing up, circling, walking out) • Eye movement: maintain eye contact to convey security, truthfulness • Facial expression: can express anger, happiness, fear, concern, etc., but also can be misread • Gestures: can be misread • Time and space: arriving on time, pleasant meeting space send cues

11. The Categorization Method Step One: Identify all issues Step Two: Classify each issue as a. compatible b. exchange c. distributive Step Three: Agree on all compatible issues Step Four: Trade or exchange issues of approximately equal value Step Five: Use distributive bargaining on all unresolved issues

12. Tools for Persuasive Communication 5-16 • Successful negotiators create leverage through persuasive • Verbal communication: direct single dialogue to present a position, followed by silence (use tone, pitch, and volume of your voice to convey meaning) • Nonverbal communication: can add emphasis through body language, facial expressions, actions • Kinesis: posture and physical movements (standing up, circling, walking out) • Eye movement: maintain eye contact to convey security, truthfulness • Facial expression: can express anger, happiness, fear, concern, etc., but also can be misread • Gestures: can be misread • Time and space: arriving on time, pleasant meeting space send cues

13. Persuasion Through Process 5-17 • Process techniques to shape the other party’s perception 1. Identify the decision maker: take the discussion to them 2. Address needs of individual team members if the interests of the groups are diffused 3. Frame the issue in terms of achieving common good for both parties, or meeting shared core values 4. Share the diagnosis of the problem to create support from both parties

14. Preparation • Decide your BATNA - always start with a clearly defined BATNA and stick to it • List all key issues either party will want decided. Include tangibles, intangibles, throwaways…the more the better! • Set priorities for the key issues by either: 1. Ranking; 2. Weights (%); 3. Assign each issue to one of four priority levels—Essential, Important, Desirable, Throwaway • Develop support arguments based on information, facts, logic

15. Reframing Offer • William Ury, Getting Past No, suggests that negotiators never say no or reject an offer instead they reframe by using questions: • Ask why: “Why did you select that exact number?” • Ask why not: “Why not ask for an estimate from a professional appraiser?” • Ask what if: “What if we agree to your price, but you paid for delivery and warranty?” • Ask for advice: “How would you suggest I present this offer to my boss when she has rejected that price?”

16. Reframing Personal Attacks • Personal attacks have become a common tactic –don’t let emotions take over strategy • How? • Prepare: Expect personal attacks, control your emotions • Recognize: The other party needs to “blow off steam” • Reframe: Ignore the attack on you, reframe it on the problem • Silence: Communicates your displeasure and can be a powerful tool

17. Conflict Diagnosis Identify the underlying interests of the participants in the conflict.

18. Interests Analysis • Causes of interpersonal conflict from the perspective of individual disputants • Learn about underlying disputant motivation • Learn about possible complementary goals • Learn about possible conflict of interest between members of a team and between members of different teams

19. Advantages of Knowing Your Team’s Interests • Gain a clearer understanding of your goals • Clarify: what interests could best be met in resolving this conflict; what interests would be better met elsewhere • Develop flexibility in bargaining position so good settlement is more attainable • Avoid the problems of positional bargaining

20. What’s Wrong with Positional Bargaining? • Danger of becoming locked into position psychologically – regardless of whether a better option is available to you • Danger of becoming blinded to important issues unrelated to your position • Tendency to see the other disputant as the enemy, leading to unnecessary impasse, additional “spinoff” conflicts (“meta-conflicts”), etc.

21. Advantages of Understanding Other Disputant’s Interests • Develop proposals beneficial to you, that other disputant will want to accept • Take advantage of opportunities created by complementary interests • Avoid later sabotage of settlement by disputant forced into undesirable settlement • Avoid positional bargaining by appealing to other disputant’s interests • Has useful even if you have to use coercion

22. Interest Trees • Are a way to organize information about interests • Help you understand underlying interests better • Help you develop strategies to meet the most important needs

23. Positions Aspirations Underlying interests Principles, values Basic human needs The “Conflict Onion”

24. PRINCIPLES and VALUES Get fair settlement People should be fairly paid Brother-in-law will think I’m spineless if I don’t get good result I’d take anything over $10,000 if I can avoid court! Wrongdoers should be punished Get back out-of-pocket losses I demand $20,000 or I sue! Esteem needs Identity needs Avoid court: risky! POSITION Deficiency needs (food, shelter, safety, clothing, etc.) Avoid time, expense of court Get paid as soon as possible Need money now: can’t pay rent Security needs NEEDS INTERESTS ASPIRATIONS Interest Tree Example

25. Tips for Interest Trees • There must always be needs – other elements are optional • There may be multiple levels of underlying interests • Each position, aspiration, interest, and principle/value rectangle must logically relate (directly or indirectly) to one or more need rectangles • Don’t confuse interests with facts or contentions

26. Conflict Diagnosis Assess the negotiation styles of the participants in the conflict, consider how these styles impact the conflict, and develop plans for encouraging cooperation and collaboration among participants.

27. Power Tools and Magic Keys • Using conflict diagnosis to understand interpersonal conflict – information for legal professionals • Selecting a dispute resolution forum

28. Using Conflict Diagnosis • Is it necessary? • Is it possible? • Techniques for incorporating conflict diagnosis into legal advocacy

29. Invisible Veil Considerations • Reasons for needing conflict diagnosis are often hidden • Conflict escalation obscures important information and disempowers participants

30. “I Don’t Have Time” • Conflict diagnosis can produce “better dispute resolution” • Often, conflict diagnosis must be curtailed due to time • Legal professionals may be prevented by: • Billable hours requirement • Belief that legal ethics require positional bargaining and/or adversary conduct

31. Changing Perspectives • Legal scholars commenting on limits of adversary processes: • Collaborative law movement

32. Disputant Disputant Negotiation “Persuade” directions Other participants Decision makers

33. Benefits of Negotiation • Protects cooperation cycle • Is less expensive, quicker • Protects disputant relationships • Is less likely to breed new conflicts • Can address nonlegal issues and issues for which cause of action has not been stated; can settle ENTIRE conflict

34. Cooperation and Competition Negotiation style Negotiation style Negotiation style COMPETITION High Concern for Self COOPERATION High Concern for Other Conflict behavior can be assertive, or cooperative, but not both

35. high Concern for Other low low Concern for Self high Dual-Concern Negotiation Theory Obliging Integrating Compromising Avoiding Dominating Conflict behavior can be assertive, cooperative, both, or neither

36. Perspectives on Negotiation Styles Cooperative styles (build relationships, prevent escalation): • Obliging/Accommodating • Compromising • Integrating/Collaborating Assertive styles (protect against exploitation): • Dominating/Competing • Integrating/Collaborating

37. Perspectives on Negotiation Styles Integrating/Collaborating: • Best for preserving advantages of cooperation • Best for preserving own interests

38. Perspectives on Negotiation Styles Mutual styles (other disputant must cooperate to use successfully): • Compromising • Integrating/Collaborating Unilateral styles (can use regardless of other disputant’s style): • Avoiding • Obliging/Accommodating • Dominating/Competing

39. Convince “other team” that collaborating will be better than the alternatives Educate other team about collaboration Convince other team you won’t take advantage of its decision to be cooperative Be ready to protect your team, or, at least, make sure that the potential benefits of your behavior will outweigh the risks Getting “the Other Team” to Collaborate

40. The Best Negotiators . . . • Use all five styles effectively • Know when to use each style • Are effective in convincing others to use Integrating/Collaborating

41. Things to Remember About Negotiation • Negotiators are not always consistent or purposeful • Effective negotiation requires effective use of power

42. Increasing Expert Power • Educate yourself • Prepare your case • Diagnose your conflict • Know your BATNA

43. BATNA • Best • Alternative • To a • Negotiated • Agreement

44. What Is a BATNA? • The best I can expect to do if this negotiation fails • The point at which it’s not useful to continue this negotiation • If I can’t do at least as well as my BATNA in this negotiation, then I should not continue negotiating

45. Advantages of Knowing Your BATNA • A “bottom line” is arbitrary but a BATNA is rational • Will keep you from settling for too little • Will keep you from walking away from a good deal • Having your BATNA in mind keeps you calm during negotiation

46. Advantages of Knowing Other’s BATNA • Anticipate what other is likely to do • Help you accurately assess whether other is cooperating or trying to exploit • Tailor win-win proposals other is more likely to accept

47. Power and the BATNA • More power = better BATNA • BATNA clarification = expert power • Knowing your BATNA translates to better use of your power (because you can act with precision)

48. Using Your BATNA • Assess your BATNA • Maximize your BATNA

49. BATNA Assessment • Build your interest tree. • Generate list of possible alternatives to negotiating an agreement with other (your “ATNAs”) • Clarify the ATNAs and adjust for uncertainty • Maximize the options • Choose the best one

50. How Are BATNAs Used? Example • You are negotiating with Sam’s Auto to purchase a car. • He will sell you a 2000 Toyota Camry for $11,000 plus your 1996 Hyundai in trade. • Should you say YES, NO, or negotiate further? • To answer the question, use BATNA analysis