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.     

An Experimental Study on the Effects of Exitability and Correctability on Electronic Negotiation

The purpose of the present study was to examine via a laboratory experiment the effects of two features of electronic negotiation, correctability and exitability, on negotiation processes and outcomes. We define correctability as the negotiator's ability to revise messages before transmitting them to the other party, thus prompting informational and social elaboration. The opportunity to exit the negotiation that the use of the electronic medium creates, a phenomenon for which we have coined the term "exitability," can give rise to the perception that electronic negotiation is inherently more unstable than face-to-face negotiation. In two experiments, we manipulated the exitability of one of the parties in three ways. In another experiment, we manipulated correctability in two ways. We found that increased exitability caused by the existence of a potential alternative party with whom to negotiate prompted participants to decrease their demands and to reach agreement more often. Increasing the correctability of messages enhanced their clarity and generated more trade-offs, thus leading to more frequent agreements.     

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.     

Neutralizing Unethical Negotiating Tactics: An Empirical Investigation of Approach Selection and Effectiveness

Negotiation is integral to business success, and information is the lifeblood of the negotiation process. When invalid information is disseminated via manipulation or deceit, one or more parties can suffer. Nonetheless, many studies have shown that the use of questionable or unethical tactics is commonplace. This article reports on a study of twelve behaviors that can neutralize a counterpart's tendencies to employ questionable or unethical tactics, improving the chances for an integrative (win–win) outcome. The results suggest that while nearly two thirds of participants employed neutralizing behaviors, they used many of these behaviors later in the negotiation process than anticipated and simultaneously alongside questionable or unethical tactics. While we found some evidence that the twelve neutralizing behaviors were viewed differently from questionable or unethical tactics, the expected attenuating effects were not found. The implications of these findings, including opportunities for future research, are discussed.     

The Rhythm of the Deal: Negotiation as a Dance

In all the literature on the theory and practice of negotiation, the governing metaphors have been games, war, and fighting. This is true not only for tactical schools of power‐based negotiation but even for more constructive, interest‐based approaches. Our language is infused with talk of tactics, flanks, concessions, gaining ground, and winning. This article explores the possible consequences of abandoning this picture in favor of the less‐explored metaphor of the dance. We argue that both the content and the process of negotiation can change dramatically once we think of bargaining as an aesthetic activity that can provide intrinsic joy as well as extrinsic benefits. Such a “dance” provides plenty of room for competition as well as cooperation, as movements can be spirited and confrontational as well as smooth and harmonious. We identify many forms of dance that can occur within negotiation and explore three: the dance of positioning, where passions and presentations interact proudly; the dance of empathy, when the partners come to better understand each other; and the dance of concessions, where the deal is struck and the music concludes. Finally, we discuss how the dance can be employed pedagogically, in teaching and training negotiation and mediation. In particular, the Brazilian dance of capoeira illustrates holistically and experientially how movement and rhythm can be interpreted both as fighting and as dancing and how we can come to see a process as both aesthetic and purposeful at the same time. First feeling, then thinking, and, finally, speaking, we can use this medium to explore the dynamics of confrontation and cooperation in a negotiation setting.     

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.     

Toward a Theory of Negotiation Precedent

It is remarkable that precedents and their use have not been well explored within the negotiation literature. In this article, I examine the sparse knowledge of precedents and offer a preliminary framework for understanding the role of precedents in negotiation, including how negotiators establish and apply them. Precedents can either evolve randomly or be created with strategic intent. Understanding precedents generally involves examining how negotiators build, adopt, avoid, and reject them. In this review of the existing literature, I identify twelve concepts and paradigms that are particularly relevant to our understanding of negotiation precedents. I also establish a research agenda and identify three methods for further developing our knowledge of precedents: applying path dependence theory from the field of international relations to a negotiation context; conducting experimental research in a laboratory setting involving subjects engaged in negotiation exercises that contain opportunities to apply precedents; and conducting field research with a focus on case methodology grounded in negotiation linkage theory and theories of negotiation dynamics. Finally, in this article, I formulate a two‐part framework on building and applying precedents, and offer managerial guidance for the negotiation practitioner. Precedents serve as a strategic technique and provide a source of power at that point in a negotiation when decisions are made.     

Making the Most of the First‐Offer Advantage: Pre‐Offer Conversation and Negotiation Outcomes

Why do some negotiators benefit from making the first offer during negotiations while others do not? This study explores the contents of conversations that take place before negotiators make their first offers in order to learn more about the differences between ultimately successful first offers that benefit from anchoring effects and ultimately unsuccessful ones in which negotiators apparently derive no benefit from making the first offer. In‐depth qualitative analyses of the conversations that role players engaged in prior to their first offers were conducted in simulated negotiation exercises. Their analysis identified five different conversational tactics that negotiators employed in one‐on‐one negotiations to gain power in the negotiation, or what they call here “power conversation tactics.” Their findings suggest that the negotiation outcome (i.e., net value) was related to how the negotiators employed and combined these tactics during the pre‐offer conversation. Based on these findings, they conceptualized four types of power‐gaining/power‐losing pre‐offer conversation scenarios and explored the link between negotiation outcomes and each of these types of pre‐offer conversations. This study further develops the literature on power dynamics and conversations in negotiations as well as the literature on the anchoring effect of a first offer.     

Assessment Procedures for Skills‐Based MBA Courses Adapted from the U.S. Army Reserve Officer Training Corps Leadership Development Program

Measuring student progress toward the achievement of learning outcomes in negotiation skills courses is a difficult task. Measuring the effectiveness of the delivery of course instruction can be equally challenging. This article proposes some answers to these questions: How can student performance in skills such as negotiation, leadership, and teamwork (sometimes referred to as “soft skills”) be effectively measured and accurately evaluated? What standards can be used to determine whether student performance is superior, adequate, or inferior? How can teaching effectiveness be evaluated to determine whether students are receiving the instruction necessary to achieve the course learning objectives? This article describes how the authors collaborated on an adaptation of the assessment processes used in the U.S. Army Reserve Officer Training Corps (ROTC) cadet Leadership Development Program for use in an MBA course on negotiation skills. We report on a pilot effort that has demonstrated that the ROTC‐style leadership assessment process can be successfully adapted for use in a graduate course on negotiation and that it provides useful means for evaluating both individual student performance and overall course effectiveness. While our work involved a negotiation course, we suggest that the process could be adapted for use in other skills‐oriented courses such as leadership.     

From Aristotle to Sadat: A Short Strategic Persuasion Framework for Negotiators

Persuasion is undoubtedly a critical negotiation skill. But while the literature has examined its role in negotiation, few, if any, scholars or practitioners have offered a clear strategic framework for putting persuasion into negotiation practice. The ethos, pathos, and logos modes of persuasion elucidated by Aristotle in the fourth century B.C.E. provide a clear, understandable, and easy‐to‐apply framework that students and trainees can use to prepare for negotiation, to deploy during the negotiation process, and to conduct debriefings following a negotiation. In this article, I describe how to apply this Aristotelian framework and explain an additional dimension of persuasion in negotiation that I believe is also critical: timing. Through the real‐world example of Anwar Sadat and his trip to Jerusalem, I demonstrate how this framework has worked in practice.     

Technology‐Driven Alteration of Nonverbal Cues and its Effects on Negotiation

A person’s appearance, identity, and other nonverbal cues can substantially influence how one is perceived by a negotiation counterpart, potentially impacting the outcome of the negotiation. With recent advances in technology, it is now possible to alter such cues through real‐time video communication. In many cases, a person’s physical presence can explicitly be replaced by 2D/3D representations in live interactive media. In other cases, technologies such as deepfake can subtly and implicitly alter many nonverbal cues—including a person’s appearance and identity—in real time. In this article, we look at some state‐of‐the‐art technological advances that can enable such explicit and implicit alterations of nonverbal cues. We also discuss the implications of such technology for the negotiation landscape and highlight ethical considerations that warrant deep, ongoing attention from stakeholders.     

An Exploration of a Model of Social Networks and Multilateral Negotiations

Multilateral (many-party) negotiations are much more complex than traditional two-party negotiations. In this article, we explore a model of social network activity, especially clique formation, among parties engaged in multilateral negotiation and the implications that such networks might have on the negotiation process and outcome. Using data collected from 375 subjects participating in a negotiation simulation, our results reveal that, primarily, the negotiator's perspectives of clique formation (coalition building) — both his or her own and the other party's — have unique effects on the integrative, problem-solving approaches used in the process and on the negotiator's satisfaction with outcomes. Secondarily, centrality (manifest as emergent power) has a positive effect on both problem solving and satisfaction. Interestingly, we found that those players who emerged as the most dominant and powerful were not as satisfied (in relative levels) as those who were less powerful.     

The Effectiveness of Negotiation Training

In the last twenty-five years negotiation has become widely recognized both as a topic of serious research and as an essential, frequently used set of skills. Organizations currently spend tens of billions of dollars annually on training, and mounting evidence suggests that training in interpersonal and problem-solving domains typically has a significantly positive effect. But little systematic research has been conducted concerning the actual effectiveness of negotiation training. This article reviews the available evidence regarding the effectiveness of negotiation training using four levels of outcome measurement. While far less prevalent than one would wish, existing evidence suggests that negotiation training can have positive effects. In this article, I review the specific effects of different teaching methods, and recommend additional research.     

Developing Superior Negotiation Case Studies

While a great deal of excellent advice exists for producing case studies on managerially relevant topics in general, negotiation cases have distinctive aspects that merit explicit treatment. This article offers tailored advice for producing cases on negotiation and related topics (such as mediation and diplomacy) that are primarily intended for classroom discussion. It describes how to decide whether a negotiation‐related case lead is worth developing and how to choose the perspective and case type most suited to one's objectives. Finally, in by far the longest part of the discussion, it offers ten “nuts and bolts” suggestions for structuring and producing an excellent negotiation case study.     

构建中日韩自贸区农产品市场准入谈判分析

构建中日韩自贸区,必定要在农产品领域实现贸易自由化,其中农产品的市场准入问题首当其冲。虽然中日韩已签署的双边自贸协定对三国间农产品市场准入谈判有重要的借鉴意义,但日韩为保护国内脆弱的农业,大量运用关税和非关税措施,并在多边农业谈判中就关税削减、特殊保障措施的存废等问题的立场与中国存在较大差异,这预示着上述问题将成为中日韩自贸区农产品市场准入谈判的难点。因此,即将开启的中日韩自贸区农产品市场准入谈判,应当结合有益的国内外实践,恰当规划谈判议程,遵守非歧视性原则,灵活设定关税削减问题中的农产品准入范围、过渡期,规范适用农产品特殊保障措施,从而推动该谈判各项共识的早日达成,进而加快中日韩自贸区谈判的进程。     

Seeking Sustainable Solutions: Using an Attractor Simulation Platform for Teaching Multistakeholder Negotiation in Complex Cases

We live and work in an increasingly complex and dynamic world. The demands of working in such environments require that negotiators understand situations of conflict and work with these situations in correspondingly complex and dynamic ways. Dynamical systems theory offers important insights and tools to enhance the understanding of difficult social conflicts, including the conceptualization of ongoing destructive conflicts as strong attractors: a particular form of self-organization of multiple elements comprising the mental and social systems associated with conflict. This article describes the pedagogical use of a computer simulation of conflict attractors (the attractor software) that allows participants to visualize and work interactively with the dynamics of conflict as they unfold over time. It further describes a negotiation workshop that employs the simulation to enhance participants' understanding of complex long-term dynamics in conflict and presents the findings of two outcome studiescomparing the effectiveness of a workshop that employed the simulation with one that employed a traditional integrative problem-solving method. While not definitive, these studies suggest that an understanding of the dynamical approach to conflict, supported by use of the attractor software, can promote the generation of more sustainable solutions for long-term conflicts.     

World Championship in Negotiation? The Role of Competitions in Negotiation Pedagogy

The last decade has seen the emergence of several new negotiation competitions around the world. We think the two major drivers of this development are a general trend toward the increasing internationalization of higher education and a recognition of the specific benefits of competitions for negotiation pedagogy. These benefits include: the high level of student commitment generated by participation in a competition, which enhances the quality of negotiation; the opportunity that the competitions give students to experience authentic cultural diversity; and the networking opportunities for students and instructors that the competitions create. This article focuses on the role that negotiation competitions can play in negotiation pedagogy. We first present an overview of the currently most important international negotiation competitions. This is followed by an outline of the specific benefits of negotiation competitions for pedagogy. We then take a closer look at the organization and outcome of negotiation competitions and discuss the opportunities for their development and growth.     

In Search of Master Negotiators: A Negotiation Competency Model

Over the last four decades, the field of negotiation has become a fully recognized academic discipline around the world and negotiation courses and competitions have become increasingly popular. Although it is believed that negotiators may be trained and that negotiation is a skill that can be taught and evaluated, the question of how to assess negotiation performance systematically and comprehensively remains largely unanswered. This article proposes a negotiation competency model for evaluating negotiation performance. The model includes a set of selected negotiation competencies together with proficiency levels and their behavioral indicators. Our goal is to help scholars design more effective negotiation courses and fairer negotiation competitions, improve negotiation pedagogy, and train negotiators who are well prepared to handle conflicts in our increasingly complex society.     

Empowering Students to Create and Claim Value through the Thomas–Kilmann Conflict Mode Instrument

In a world of problem‐solving lawyering, principled negotiation, and integrative bargaining, to describe a negotiation as “distributional” may strike some as heretical. Still, we disserve our students if we ignore distributional bargaining altogether. Unfortunately, many law students who are drawn to negotiation classes bring with them a fundamental discomfort with claiming value. Contrary to the stereotypes that attribute aggression and “sharp practices” to lawyers, many law students struggle to become more assertive. The Thomas–Kilmann Conflict Mode Instrument (TKI) is one tool that I have found can help raise students' awareness of, and comfort with, the reflexive responses to conflict that can impede their attempts to claim as well as create value in negotiation. The insights students gain from taking the TKI can be quickly put to use in the next negotiation role play. Although it may help students realize their dominant response to conflict, the TKI highlights that no single approach to negotiation is always best. Thus, the TKI can both encourage the reticent to claim more value in negotiation and suppress the seemingly insatiable appetites for value claiming that drive other students. When administering the TKI, I encourage students to learn at least four major lessons:

• 1 A negotiator has a choice in resolving the dilemma between value claiming and value creating. We are not just stuck with our reflexes.
• 2 Still, it is good to know what our reflexive response to conflict is likely to be so that we are more mindful of the choices as we make them.
• 3 Departing from reflexes requires energy: preparation, planning, mindfulness, and conscious effort.
• 4 Adaptability is desirable. A well‐integrated negotiator might move from one TKI “type” to another as a negotiation progresses.

In this article, I seek to give a very brief overview of the ways I have used the TKI to convey these lessons, increasing students' comfort with, and management of, value claiming. To this end, the article will describe the TKI, explain how I administer and debrief the students' encounter with it, and point out some potential pitfalls of this process.     

Developing Strategies for Asking Questions in Negotiation

Although negotiation writers often advise negotiators to have a strategy for asking their counterparts questions, the negotiation literature does not currently provide a detailed discussion of how to develop a strategy for asking questions in negotiation. This essay begins that discussion. In doing so, it draws from such disciplines as logic, linguistics, and cognitive psychology, in which the act of questioning has been examined with the goal of developing theory. This article also draws from such applied disciplines as law, education, and journalism, in which questioning as a matter of strategy has also been examined. A common theme across these different domains has been potential resistance to answering questions on the part of the person being interviewed and explorations of the sources of that resistance. Therefore, in this discussion of questioning strategy, I have focused particularly on how resistance can be avoided or overcome.