Negotiation Theory and Brexit

Harvard Professor and author of “Negotiating the Impossible" Deepak Malhotra applies negotiation theory to Brexit in today's NY Times: "Ignoring the genuine 'red lines' of your negotiation counterpart is often a costly mistake."

Malhotra explains why U.K. Prime Minister Teresa May "must first stop negotiating like an agent and start negotiating like a mediator."

Good Video Depicting Common Adversarial Tactics in Zero-Sum Negotiation

This good short negotiation video on Vimeo is produced at the University of North Carolina and depicts an automobile sale negotiation.

It depicts some adversarial tactics suited for zero sum negotiation about price.
For example, walking away from the table, keeping the other party waiting, adding a new demand late in negotiation, asking the other party's bottom line: "How much are you willing to pay?" And use of a team with a "Good cop, bad cop" (sales person "checks with manager").

Best Alternative To a Negotiated Agreement (“BATNA”)

The Best Alternative To a Negotiated Agreement (“BATNA”) is an important concept in negotiation. BATNAs in Negotiation: Common Errors and Three Kinds of ‘No’ by Harvard Business Professor James K. Sebenius elaborates. The abstract:

The best alternative to a negotiated agreement (“BATNA”) concept in negotiation has proven to be immensely useful. In tandem with its value in practice, BATNA has become a wildly successful acronym (with more than14 million Google results). But the initial characterization of this concept in Getting to Yes (Fisher, Ury, and Patton 1991) as well as many later interpretations can be problematic, limiting, and even misleading in several ways, which this article analyzes and illustrates. First, early characterizations could be easily read to imply that one’s BATNA could not itself be a negotiated agreement. Second, and more seriously, common descriptions of one’s BATNA as the “best outside option, independent of the other side” needlessly limit its applicability, especially in the many bargaining relationships in which BATNAs are inherently interdependent. Third, BATNAs are often mistakenly described mainly as “last resorts” relevant only in case of impasse or “if the other side is more powerful.” Other uses of the term “BATNA” such as the common question, “How do I negotiate if I have no BATNA?” reflect misconceptions. Although savvy negotiators and analysts generally avoid these pitfalls, the less sophisticated can go astray. This article offers robust correctives to these misimpressions and relates these to three different kinds of “no” in negotiation: a “tactical no,” a “re-set no” that permits away-from-the-table moves to favorably alter the underlying setup, and a “final no.”

Deceptive Negotiation Tactics

From the Harvard Program on Negotiation Blog and Professor G. Richard Shell:

1. Lies about bottom lines and alternatives.

2. “Too good to be true” offers.

3. Escalation of commitment.

4. Lack of reciprocity.

5. Last-minute nibbling.

Negotiating With Someone Who Says "No" to Your Proposal

William Ury's well-respected book, Getting Past No receives a nice summary and application from Alex Craigie (At Counsel Table) here. 

  When negotiating with difficult people:
1. Put your emotions aside,
2. Listen to your counterpart's position well enough to state it back to your counterpart,
3. Reframe the dispute by recasting what your counterpart says in a form that directs attention back to the problem of satisfying both sides’ interests,
4. Make it easy for your counterpart to say yes if you can persuade your counterpart–overtly or covertly–that your proposal or goal is actually your counterpart's idea,
5. Make it hard for your counterpart to say now by showing your counterpart the alternative is if an agreement is not reached. As Alex Craigie says: "Here are three reality-testing questions Ury likes:

1. “What do you think will happen if we don’t agree?”
2. “What do you think I will do?”
3. “What will you do?”

Ury acknowledges that this won’t always work.  He reminds us of one of the most important concepts from Getting To Yes, formulating your own Best Alternative To A Negotiated Agreement (BATNA). Before you resort to actually implementing your BATNA, Ury suggests “you should let your opponent know what you intend to do. You want to give him a chance to reconsider his refusal to negotiate.” (Id. at 117.)"

Mediation Advocacy

These tips on mediation advocacy are aimed at plaintiffs' lawyers but are widely transferable.

Examples: "Don’t reveal your bottom figure too soon, even to the mediator."

"Be patient. Most large cases do not settle quickly. It may take more than one session."

Your client's "anger will create an impediment to settlement. In addition, your client may not understand why her lawyer is candidly admitting weaknesses."

These tips for lawyers representing clients in mediation are by Roger Booth via Donna Cole.