Category Archives: Negotiation and Settlement

Federal law would create negotiation training programs for women and girls

Negotiation justice for womenOn January 9, 2009, the U.S. House of Representatives approved two bills that would remedy paycheck discrimination.  One, the Paycheck Fairness Act, would eliminate gender-based pay disparities.

What is especially significant about this Act is that it would establish a grant program to fund training for women and girls in negotiation skills. Section Five of the Act provides:

An entity that receives a grant under this subsection shall use the funds made available through the grant to carry out an effective negotiation skills training program that empowers girls and women. The training provided through the program shall help girls and women strengthen their negotiation skills to allow the girls and women to obtain higher salaries and the best compensation packages possible for themselves.

Congress has at last recognized and aims to remedy a problem that women themselves have long been aware of: that social barriers prevent women from negotiating effectively.

(Hat tip to Concurring Opinions.)

It pays to know the other side's BATNA when you're negotiating

Knowledge is powerKnowledge is power in any negotiation. Skilled negotiators prepare carefully, taking time to identify their key interests and their alternatives if no deal is reached (in negotiation parlance, their “BATNA” — their best alternative to a negotiated agreement).

These negotiators understand that that’s just one side of the equation. It’s not just enough to know your own alternatives; you also have to know the alternatives your counterparts are weighing. It protects you from making poor decisions at the negotiating table.

In “Nudge, Shel Silverstein, Smart, and Negotiation,” Joel Schoenmeyer, who blogs at Death and Taxes, recounts a snappy anecdote about a negotiation over royalties to show what happens when you don’t bother to do your homework about the other guy’s BATNA. Go read it — it’s got a great punchline.

Will mediate for beer: as times get tough, locals turn to bartering

Pub barters beer for food

At The Pigs, a pub in Norwich, England, locals can trade food — produce they’ve grown or game they’ve caught — for beer. According to the sign posted in the pub, “If you grow, breed, shoot or steal anything that may look at home on our menu, then bring it in and let’s do a deal!”

That’s the story according to a video posted by ABC News this evening. (To view, click here and then on the link for the September 16 story titled, “Bartering for Beer”.)

No word yet on whether pub owners will also trade beer for professional services. Accountants, lawyers, mediators, and others, stay tuned.

Bartering is on the rise elsewhere in the world, including here in the U.S., as small business owners and others swap goods and services to cope with lean times and an economy in free fall. It’s a time-honored and creative way to continue to get to yes even when cash is short.

(Photo credit: Mike Johnson.)

New blog Settlement Perspectives puts spotlight on resolving disputes and getting the deal done

Settlement Perspectives

Attorney John DeGroote has hit the ground running with the launch of his blog, Settlement Perspectives. Although his blog is just five posts old as of today’s date, John has already demonstrated the exemplary writing and skillful storytelling that are the mark of the successful blogger.

John tells readers the value he brings to the table:

I created this site to help clients and their counsel navigate the challenges that inevitably result from disputes, settlement efforts, impasse, and negotiation in general. The perspectives I bring are based on my experience, including more than 8 years as the Chief Litigation Counsel of a global company and the sometimes difficult lessons I learned before I got here.

In his first post, “Why Are We Here?“, John extends an invitation to readers to share their perspectives:

…it seems that a place where lawyers and clients can find new, and sometimes different, perspectives on how to settle disputes can save everyone time, money and risk exposure. With your contributions and comments, I think can serve that purpose.

By the way, John has created a resources page for visitors to his site and was kind enough to include links to the World Directory of ADR Blogs and to Mediation Channel.

John, congratulations on the launch of what is already an impressive blog and one that I shall look forward to reading. It’s a pleasure to welcome you.

New episodes in International Dispute Negotiation podcast series cover hard bargaining, emotions across cultures

International Dispute NegotiationOne of the very best of the ADR blogs is International Dispute Negotiation, a high-quality podcast series hosted by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure – Oil & Gas, whose home base is Florence, Italy.

Masterfully produced, these podcasts offer conversations with leading thinkers and distinguished practitioners who bring a global perspective on mediation, arbitration, and negotiation. Although international in focus, these interviews have relevance to ADR practice or negotiation wherever in the world you may be.

The most recent podcasts are:

The rest is trust: cognitive errors make it easy to misjudge trustworthiness

Be trustworthy not trustingTrust, as any negotiator knows, is critical. Its presence gets commitment; its destruction sours deals. But trusting and being trusted is a delicate balance: effective negotiators know to “be trustworthy, not trusting.” No one wants to be fooled at the negotiating table.

In “Confidence game,” journalist Drake Bennett, writing for the Boston Globe, provides a fascinating look into the related issues of trust and trustworthiness. Trust is essential to much more than negotiation:

…human society would not function without trust. We loan things to friends, we take to the road assuming our fellow drivers are not suicidal, we get on airplanes piloted by people we’ve never seen before, and, when asked to sign something, we rarely read the fine print. If people stopped to double-check the background and references of everyone they had an interaction with, social life would slow to a standstill.

Although one would naturally assume that doubt would be our first reaction, trust is in fact our default response. And all too often, we decide to trust based on the flimsiest of evidence:

When deciding who to trust, the research suggests, people use shortcuts. For example, they look at faces. According to recent work by Nikolaas Oosterhof and Alexander Todorov of Princeton’s psychology department, we form our first opinions of someone’s trustworthiness through a quick physiognomic snapshot. By studying people’s reactions to a range of artificially-generated faces, Oosterhof and Todorov were able to identify a set of features that seemed to engender trust. Working from those findings, they were able to create a continuum: faces with high inner eyebrows and pronounced cheekbones struck people as trustworthy, faces with low inner eyebrows and shallow cheekbones untrustworthy…

Just as in other cognitive shorthands, we make these judgments quickly and unconsciously – and as a result, Oosterhof and Todorov point out, we can severely and immediately misjudge people. In reality, of course, cheekbone shape and eyebrow arc have no relationship with honesty.

But we are led astray in other ways, and it’s not just a trustworthy face that can persuade us:

Another set of cues, and a particularly powerful one, is body language. Mimicry, in particular, seems to put us at our ease. Recent work by Tanya Chartrand, a psychology professor at Duke, and work by Jeremy Bailenson and Nick Yee, media scholars at Stanford, have shown that if a person, or even a computer-animated figure, mimics our movements while talking to us, we will find our interlocutor significantly more persuasive and honest.

These studies remind me strongly of the work of Robert Cialdini, who has revealed how susceptible we are to the weapons of influence and how easily trust can be gained by those who understand how to manipulate human behavior.

As skilled negotiators know, be trustworthy, not trusting.

Accessorizing for your next negotiation: should appearance matter?

Looks matter for your next negotiationA Google Alert in this morning’s email directed my attention to an article titled, “Isn’t Your Look Part of Your Negotiation?“, posted on, an online magazine “written for today’s entrepreneurial woman”.

The article emphasizes the importance of preparation to effective negotiation — namely, making the right impression with your appearance:

Here are some tips: mimic their style, put yourself in an attractive light and don’t create distractions. What does mimic their style mean? It doesn’t mean be who you are not, but rather present yourself in such a way that will look good to the other party… Mimic their look means to create a look for yourself that will be most pleasing for them to receive you.

Now here’s my favorite part, which the article offers up with a straight face and not even the faintest whiff of irony:

Negotiations are all about getting the other party to listen to you. Your hair, your clothing and your accessories should all be in tune to the tastes of the other party.

(Emphasis added.)

Huh? My accessories? Are you serious? (Incidentally, as my readers know, negotiations are indeed all about listening, but not “all about getting the other party to listen to you”. It’s in fact a lot about listening to them — vital to the relationship building that successful negotiations depend upon. Plus you’ll learn a great deal and be able to leverage the information you acquire.)

How about emphasizing the importance of a professional appearance? In his book Influence: The Psychology of Persuasion, Robert Cialdini describes how powerful authority is as a tool of persuasion and how readily we submit to those who wield it, often unable to distinguish between real and apparent authority. He points out that one of the most recognizable emblems of power here in the West is “the well-tailored business suit”, which “can evoke a telling form of deference from total strangers”, as experiments have shown.

Well-tailored suits aside, I confess I am left uneasy by all this talk about a negotiating woman’s appearance. Behind it lurks a whole array of social justice issues uncomfortable to discuss but urgent for us to face — women and aging, youth and beauty, race and skin color, antipathy toward the obese, prejudice against those with disabilities or deformities.

In urging women to “mimic” the look of their bargaining counterpart, how would the author of this article counsel the 60-year-old woman negotiating with her 30-year-old prospective boss? Or a woman of color negotiating in a predominately white workplace? Or a woman wearing a hijab? Or a woman with a face disfigured in a car crash, negotiating with people who are unscarred and whole?

There’s much, much more here than meets the eye.

The art of negotiation: a video interview with international negotiator Mitchell Reiss

the art of negotiationThe College of William and Mary has posted an interview with Mitchell Reiss, Vice Provost for International Affairs, who explains the art of negotiation and describes his experience negotiating with North Korea in this short video.

One of the most important qualities a negotiator possesses is patience, according to Reiss, who observes that it “isn’t just a virtue, it becomes a tactical advantage” at the negotiation table.

If you’re interested in learning more about international negotiation or ADR in international contexts, don’t forget about International Dispute Negotiation, the excellent podcast series by Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure – Oil & Gas, based at his company’s headquarters in Florence, Italy.

Recent offerings include:

Michael plays engaging host in conversations with some of the best and the brightest from around the globe. You can view the archive of previous episodes to find more.

Bargaining for your life: condom negotiation skills

Behind the blinds - condom negotiationsPeople like me who teach negotiation like to tell our audiences that everything is negotiable. But I suspect that most of us still understand negotiation as an activity conducted at workplaces, in board rooms, in law offices, in union halls. We imagine negotiations over salary, over working conditions and benefits, over contracts, over stock options, over cash.

In doing so, we overlook the daily transactions that quietly make up life’s most important negotiations. And there’s one kind of negotiation in particular that holds serious consequences for those who lack the skill to succeed in it.

It takes place in private. It proceeds behind closed doors, when the shades are drawn, in halting steps or in haste.

It’s a kind of negotiation that demands self-agency, the ability to advocate zealously for oneself and also to walk away if you can’t get to yes:

Condom negotiations.

These are negotiation skills every sexual active teenager and adult should possess: the ability to negotiate safe sexual practices with a partner. The web, that confidential, sometimes dependable refuge for the embarrassed or the self-conscious, offers advice and links to resources. These include:

These are negotiation skills on which life and death can depend. It’s time at last to throw open the shades, let in the light, and talk about them openly.

Mediation gets its own official brew: Collaboration Not Litigation Ale

Collaboration Not Litigation AleWhen you toast your next successfully concluded mediation, you may want to think about hoisting a glass of Collaboration Not Litigation Ale, brewed by the Avery Brewing Company in Boulder, Colorado.

May I recommend as a suitable accompaniment some delectable “Make barbecue not war” spareribs?

Bottoms up!

(Here’s to the Legal Antiquarian for the link.)

(Photo credit: Laura Nubuck.)