The Reputational Advantages of Demonstrating Trustworthiness: Using the Reputation Index with Law Students

Lawyers should care about their reputations. But exactly what sort of reputation should lawyers seek to establish and maintain in the largely nontransparent context of legal negotiation? And even if a lawyer has developed a reputation as a negotiator, how will he/she know what it is and how it came to be? I force my students to grapple with these questions by incorporating the issues of reputation and reputation development into my negotiation/mediation course. I introduced this innovation at the same time that I decided to increase my focus on developing students' skills in distributive (or value‐claiming) negotiation. Although legal negotiation certainly offers frequent opportunities for the creation of integrative joint and individual gains, the process will almost inevitably involve distribution. The pie, once baked, must be cut. As a result, I now base a portion of my students' final grade on the objective results they achieve in two negotiation simulations. Two dangers of this assessment choice are that it can encourage students to focus only on the numbers and, even worse, engage in “sharp practice”— an extreme form of hard bargaining that tests ethical boundaries — in order to achieve the best short‐term distributive outcomes. Of course, neither a quantitative focus nor sharp practice is synonymous with a distributive approach to negotiation. Nonetheless, to counterbalance the temptations posed by the focus on, and ranking of, objective results, I also base part of students' final grades on their scores on a “Reputation Index.” These scores are based on students' nominations of their peers, accompanied by explanatory comments. This article describes the Reputation Index and how I use it. It also explores the empirical support for the validity of the Reputation Index as a tool for simulating the development and assessment of lawyers' reputations in the “real world.” To that end, the article considers research regarding the bases for lawyers' perceptions of effectiveness in legal negotiation, the sometimes counterintuitive distinction between negotiation “approach” and negotiation “style,” and the relationships among perceptions of negotiation style, procedural justice, trustworthiness, and reputation.     

Bargaining Styles and Negotiation: The Thomas-Kilmann Conflict Mode Instrument in Negotiation Training

Many negotiation courses and executive training programs cover the subject of bargaining styles. The Thomas-Kilmann Conflict Mode Instrument (TKI) is a commonly used psychological assessment tool that helps students and teachers probe this topic. The TKI measures the five conflict management facets proposed by the Dual Concerns Model: competing, collaborating, compromising, accommodating, and avoiding. The author has used the TKI extensively in teaching executives about bargaining styles, and discusses the strengths and weaknesses of it as a teaching aid. He also presents research on the frequency with which various TKI scores are reported in business programs. Finally, he provides thumbnail sketches of typical bargaining behavior exhibited by people with very strong and very weak predispositions for each of the five conflict modes. Some implications of these behaviors for specific professional audiences are explored.     

Hard Bargaining in the Classroom: Realistic Simulated Negotiations and Student Values

Empirical research into the negotiation practices of lawyers shows that “hard bargaining,” including at least some unethical conduct, is an inescapable fact of a lawyer's life. To prepare students for legal practice, negotiation instructors must expose them to hard bargaining in the classroom. In doing so, however, instructors should be sensitive to the moral and ethical values of their students, so that the classroom experience does not unduly pressure students to compromise their values. The simulation is the primary tool of negotiation instruction. By selecting and manipulating simulations, a negotiation instructor can expose students to a wide range of negotiating behaviors, from distributive negotiations marked by the use of power tactics to value‐creating negotiations in which participants must consider many interests and collaborative strategies predominate. With that flexibility, however, comes the potential for classroom exercises to pressure students, in ways both subtle and overt, to adopt behaviors that feel uncomfortable. In this article, I examine the use of simulations to teach different types of negotiating behavior, including hard bargaining. Referring to a number of widely available simulations, I suggest ways to focus student attention on three dimensions of negotiation behavior — the issues over which the parties are bargaining, the objectives the parties seek, and the tactics the parties use to achieve their objectives — in order to push students to reflect on their own negotiation behaviors and to prepare for the tactics of others. I assess the potential for simulations to pressure students to compromise their values, and I conclude with my own thoughts on the goals of a negotiation course.     

The impact of international conflict and detente on bargaining in arms control negotiations: An experimental analysis

This paper reports on a laboratory experiment which investigated the impact of conflict and cooperation in a hypothetical international environment on the bargaining processes and outcomes of a simulated arms control negotiation. A method called Bargaining Process Analysis was employed for measuring the content of bargaining behaviors in this experiment where free verbal interactions were permitted.

The results suggested that a heightening of international tensions tended to increase the perceptions of mutual hostility among negotiators, to increase the employment of “hard‐line” bargaining strategies such as threats and retractions, to increase the proportion of negative relative to positive affect and disagreements relative to agreements. These changes in bargaining behavior, in turn, detracted from the ability of negotiators to identify a solution to the bargaining problem and from the level of agreement attained. Conversely, increased cooperation in the international environment had no consistent, strong effects on either the bargaining process or outcomes of negotiations.     

The Effect of Advice on Negotiations: How Advisors Influence What Negotiators Do

Studies of negotiations often overlook, or at least do not fully account for, the important role played by people who advise negotiators. Often deliberately hidden from view, advisors have important but unrecognized influence on the negotiation dynamic. In this article, I explore the roles and methods of advisors in the negotiation process, drawing on role theory and survey research conducted in 2013 among approximately seventy advisors at the European Union Council of Ministers. I define advice as “a communication from one person (the advisor) to another (the client) for the purpose of helping that second person determine a course of action for solving a particular problem” and consider the nature of this advice and the range of relationships that may exist between advisors and their clients. Advising is much more than the mere transmittal of information from advisor to negotiator and that for advice to be effective a relationship must exist between the two parties. I then identify three models of the advisor–negotiator relationship. The first is the advisor as director, wherein the advisor tends to take control of the negotiating process, directing the negotiator toward actions that she or he should take to achieve success at the negotiation. The second is the advisor as servant, in which the advisor merely responds to the demands of the client for help and guidance in the negotiation. And the third is the advisor as partner, wherein advisor and negotiator jointly manage the process and solve the problem together. Finally, I explore the factors that lead advisors and negotiators to adopt each of these three models, the various advising styles that advisors use, and the differing effects on the negotiation process that these elements may have, drawing on historical examples as well as survey data from the EU Council of Ministers.     

Transcending the Classroom: A Practical Guide to Remote Role Plays in Teaching International Negotiation

This article discusses the pedagogical value of using remote role plays in cross‐cultural negotiations between two classes taught simultaneously at different and geographically distant institutions. We argue that remote role‐play simulations provide valuable teaching and learning experiences, and are particularly helpful for managing issues associated with outside‐group negotiation and cultural differences, the prenegotiation stage, electronic negotiations and distorted communication, and one‐shot settings in which the negotiator lacks previous knowledge of the partner. The article begins with a discussion of some critical limitations of “traditional” in‐class role plays, followed by a practical guide to remote role plays and a report of our experiences with them. Finally, we discuss the advantages and disadvantages of remote role plays as a teaching tool for international negotiation classes and the key lessons for the participating students.     

Yea,Nay, and Everything in Between: Disparities within the Academic Ombuds Field

Few colleges and universities have chosen to establish ombuds offices, and the profession itself has remained relatively obscure. Although organizations have established different types of ombuds offices, the International Ombudsman Association (IOA) defines an organizational ombuds office as a neutral, informal, independent, and confidential office that allays and prevents conflict within the organization and brings systemic concerns to the attention of the organization for resolution. Ombuds office professionals work with individuals to inform them of their options and help them express their concerns in challenging conflict situations. But they also work at the systemic level to alert leaders to important institutional trends and patterns that they would be less likely to perceive on their own. In this article, I examine several stark discrepancies within the academic ombuds profession that may contribute to the relative invisibility of the field itself. While organizational ombudspeople who belong to the IOA unite under the IOA's standards of practice in theory, in practice they diverge in several areas, including the nature of their positions, hiring practices, the level of informality in their practice, their degree of isolation or integration within their institutions, how they cultivate relationships on campus, and how essential they consider ombuds offices to be for the effective functioning of the university. They often also fundamentally disagree about such areas as:

• ? the terminology that defines the job — practitioners disagree about the usefulness of the terms “ombuds” and “ombudspeople,” for example;
• ? the role of neutrality and the challenge of maintaining it;
• ? the value of IOA certification;
• ? the most appropriate methods for evaluating the effectiveness of an ombuds office; and
• ? how ombuds make recommendations for institutional improvement.

The ombuds profession in general — and academic ombuds professionals in particular — need not necessarily resolve all practice discrepancies in order to thrive, but I argue that open acknowledgement of existing discrepancies can help the profession more effectively promote itself and present a more consistent image to the world.     

The Culture of Interest: A Proposed Addition and Revision of the Three‐Culture Model

Negotiation and conflict resolution theorists have classified world cultures according to three types for the purpose of describing and predicting some of the ways in which individuals and groups within broad, geographically based cultural groups behave in conflict and negotiation‐related situations. These three broad categories, called “cultural syndromes,” have described these cultures according to the relative value they place on these three concerns: honor, face, and dignity. Based on our examination of the literature on the cultural dimensions of negotiation and conflict management, our own practice, and an analysis of literature and practice pertaining to the place and utility of the honor, face, interest, and dignity attributes within and between cultural groups , we propose a reformulation of this typology. Our reformulation would replace the broad “dignity” category with a new category that we call “interest,” which we believe better characterizes Northern European and North American cultures. We also argue that a cultural orientation toward dignity is universal and not geographically unique and is thus shared by all three cultures. This new formulation, we believe, more accurately characterizes the global range of orientations toward negotiation and conflict resolution and would, if adopted, help scholars and practitioners better understand culturally divergent conflict orientations and behaviors as well as the ramifications of such differences for negotiation and conflict resolution practice.     

A no-displacement option? Rights,risks and negotiated settlement in development displacement

“Voluntary” land transfer agreements, negotiated directly between “willing buyers and willing sellers”, present a seemingly empowering alternative to the use of legal instruments for land acquisition or transfer which entail forced displacement. Yet asymmetrical bargaining power between the negotiating parties can undermine the fairness of negotiated outcomes and the right of the sellers to a “no-displacement” option. Viewed against a complex background of bourgeoning land transfers in multiple sites, this article examines rights-based and risks-based approaches to negotiated settlements, concluding that measures to address asymmetries in bargaining power must look beyond enhanced negotiation procedures to address underlying social and political dimensions.     

Improvisation and Teaching Negotiation: Developing Three Essential Skills

The notion of an adaptable negotiator, who can respond to any situation he or she encounters, resonates with every negotiation expert. Unexpected things happen in negotiation, and negotiators must be able to adapt in fleet and effective ways. Dealing with the unexpected, responding “in the moment,” and adapting effectively to sudden changes — these are the skills of an improvisational artist, and they are effective skills for negotiators to learn. How can improvisational skills be taught to negotiation students so that they will be able to draw upon these skills in the heat of a negotiation or mediation? By bringing together teachers of improvisation in various disciplines, we explored how improvisation is currently applied and taught in theater, business, and psychotherapy. We then developed some ideas about ways in which teachers of negotiation might begin to incorporate improvisation as part of the negotiation lesson plan.     

Value Creation: A Coordination Game

Strategy in negotiation is often modeled as an activity involving the interplay of creating and claiming behaviors. Theorists have advanced differing perspectives on what game best describes the consequences of choosing one approach over the other. David Lax and James Sebenius offer the prisoner's dilemma game as a model, whereas Richard Walton and Robert McKersie's analysis is consistent with a version of a classic coordination game — namely, the game of “chicken.” This article revisits these two perspectives and shows that the Walton–McKersie view is applicable to a broad range of contexts. In particular, it demonstrates how what is commonly called the tension between creating value and claiming is better understood as the simple tension between a high‐risk and a low‐risk choice.     

Revisiting the Madman Theory: Evaluating the Impact of Different Forms of Perceived Madness in Coercive Bargaining

Abstract

This article reconsiders the theoretical logic behind the “Madman Theory”—the argument that it can be beneficial in coercive bargaining to be viewed as mad, or insane. I theorize about how we can best define perceived madness in a way that is relevant for analyzing coercive bargaining. I identify four types of perceived madness, broken down along two dimensions. The first dimension is whether a leader is perceived to (a) make rational calculations, but based on extreme preferences, or (b) actually deviate from rational consequence-based decision making. The second dimension is whether a leader’s madness is perceived to be (a) situational or (b) dispositional. I argue that situational extreme preferences constitute the type of perceived madness that is most helpful in coercive bargaining. I illustrate my argument using case studies of Adolf Hitler, Nikita Khrushchev, Saddam Hussein, and Muammar Gaddafi.     

Dumb Barter: A Seminal Form of Negotiation

Negotiation requires communication, but not necessarily verbal exchanges. Adjustments can be achieved incrementally by other means. This article will examine how some parties have managed to strike a deal in situations characterized by total distrust and even hostility, asymmetric power relations, major cultural differences, extreme logistical difficulties in reaching the place in which the trade is to be made, and several additional process risks by employing a type of bargaining known as “dumb barter.” This process presents a distinct paradigm with a specific and unique rationale. Sometimes called “silent trade,” it has been observed in many places (especially West Africa) for more than two millennia. It may well be the oldest form of trade negotiation and is still practiced in some parts of the world. An examination of this unlikely but real and effective process can also provide negotiation theorists with some useful insights into the fundamental nature of negotiation.     

Precedents in Negotiated Decisions: Korea–Australia Free Trade Agreement Negotiations

Initial random acts can be replicated and evolve into precedents, but precedents can also be built with strategic intent. Regardless of their origin, strategically applying a particular precedent or effectively refuting the relevance of a precedent can help a negotiator control decisions and achieve interdependent goals. The purposeful use of precedents has received little attention in the negotiation literature, even though using precedents can be a powerful negotiating tactic. In this study, we examine how past decisions became precedents that helped establish the Korea–Australia Free Trade Agreement of 2014 (KAFTA). We further consider how precedents established through KAFTA later influenced trade negotiations with Canada, China, India, and Japan. Following an extensive literature review and field research, we developed a two‐dimensional matrix (precedent ownership and negotiator goals) to help guide negotiators both offensively (what I want from you) and defensively (what I don't want to give you). We conclude by proposing research to enhance our understanding of temporal issues in negotiation. No previous study within the negotiation literature has examined precedents empirically.     

A mathematical model of the persistence of conflict

A differential equation model is proposed to explain how a persistent level of conflict might be maintained by a nation. The basic driving force in the model is the assumption that there are two interacting forces within the nation. One group benefits from high levels of conflict and as the level of conflict drops attempts to drive it upwards again. The other group benefits from the absence of conflict and as the level of conflict becomes high attempts to drive it down. These assumptions lead to a model which has the following characteristics:

1. If the initial level of conflict is positive the stable level is positive and intermediate between the desired positions of the nationalists and internationalists.

2. If the initial value is negative the behavior is unstable and infinite negative conflict results.

   Introduction of a lag in the response to policy can produce the following additional behaviors:

3. Oscillating return to the equilibrium point.

4. Oscillating patterns which are virtually constant over time.

5. Rapid increases in conflict for short periods of time interspersed with long period of virtually no conflict.

   These different patterns can be obtained with the change of a single parameter in the model.

     

Level Two Negotiations: Helping the Other Side Meet Its “Behind‐the‐Table” Challenges

A long analytic tradition has explored the challenge of productively synchronizing “internal” with “external” negotiations, with a special focus on how each side can best manage internal opposition to agreements negotiated “at the table.” Implicit in much of this work has been the view that each side's leadership is best positioned to manage its own internal conflicts, often by pressing for deal terms that will overcome internal objections and by effectively “selling” the agreement to key constituencies. Far less frequently have analysts considered how each side can help the other side with its “behind‐the‐table” barriers to successful agreement. Following Robert Putnam's two‐level games schema, I characterize such “behind‐the‐table” or “Level Two” barriers more broadly, offer several innovative examples of how each side can help the other overcome them, and develop more general advice on doing so most effectively. As a fuller illustration of a Level Two negotiator helping the other side with its formidable behind‐the‐table challenges, I pay special attention to the end‐of‐Cold‐War negotiations over German reunification in which former American Secretary of State James Baker played a key role.     

Reverse Bargaining: Some Oddities That Illustrate the “Rules”

Unions striking for lower wages? Buyers seeking higher prices? Such cases of counter-intuitive or paradoxical bargaining strategy and behavior prove useful in refining the concepts and statement of negotiation theory. Examination of four such instances of apparently nonsensical negotiation reveals the underlying soundness of the distinction between position and interest, once these concepts are specified appropriately. The resulting enrichment of theory, in turn, leads to improved practice, underlining the importance of exploring interests. The argument emphasizes the value of examining the unexpected.

     

Sharks, Saints, and Samurai: The Power of Ethics in Negotiations

In this article, I explore the notion that ethics, far from being a check or drag on negotiator power, can actually help to enhance it. As the example of Nelson Mandela negotiating with the South African government showed, ethics (or at least the perception of being ethical) can be a major source of power, diminishing or even neutralizing many other weaknesses. I explore some of the principal ethical dilemmas facing negotiators and illustrate the sometimes surprising ways that "right" ethical choices can actually increase negotiator power. This occurs not only in the more superficial case of instrumental or even prudential ethics, (the province of "saints" and "sharks"), where "right" behavior is employed to gain short-term advantage or to improve long-term negotiator reputation, but even more so in the case of intrinsic "principled" negotiation, where the "right" thing is done for its own sake. As in the case of the medieval Japanese samurai, ethics can be a major source of power. This thesis is then illustrated anecdotally in three practical examples, leading to a proposal for how to deepen and apply this lesson to negotiation analysis and practice.