TPHO2

Principles and
Practices of
Negotiation
Presented by
Professor John Barkai

William S. Richardson School of Law
University of Hawaii at Manoa
2515 Dole Street · Honolulu, Hawaii 96822

Phone (808) 956-6546 · Fax (808) 956-5569
E-mail: barkai@hawaii.edu
Web Page: www2.hawaii.edu/~barkai
Common Forms
of Dispute Resolution
Negotiation:
discussion for the purpose of
settling differences
Mediation – (Conciliation):
a neutral third party assists the
parties reach a negotiated
settlement but has no power to
decide the issues in dispute.
Arbitration:
a neutral third party is given the
power to decide the issues in
conflict. The arbitrator decides
after hearing arguments and
reviewing evidence.
Trial in Court:
evidence is presented to a judge or
jury for a decision under formal
rules of law and procedure.
Professor John Barkai --- University of Hawaii Law School - p. 1 -

BASIC DEFINITIONS FOR DISPUTE RESOLUTION:
COMPETITIVE
Competitive negotiators want to "beat" their opponents; they use high demands,
threats, and make few concessions. They generally try to undermine their
opponent's confidence and seek the maximum for themselves. This traditional
style of negotiating goes by a number of different terms such as positional, win-
lose, adversarial, power negotiating, hardball, and hard bargaining.
COOPERATIVE
Cooperative negotiators want to "work with" their opponents; they use

reasonable opening offers, show good faith, and initiate the exchange of mutual
concessions. They seek a fair and just settlement. This style of negotiating is
also called win-win, interest-based bargaining, and problem solving.
DISTRIBUTIVE BARGAINING
In distributive bargaining the parties think of the items being negotiated as fixed
and each party tries to get the most for himself. Usually there is just one issue
for negotiation and more for me means less for you. Negotiators are bargaining
over the distribution of profit on the bargaining range. This is a "zero sum"
negotiation. Although the goals of the parties are in direct conflict, a negotiator
can be either competitive or cooperative in a distributive bargaining situation.
INTEGRATIVE BARGAINING
During integrative bargaining, the parties are working together to increase the
amount of resources and to maximize mutual gain. Integrative bargaining
requires two or more issues so that trades can be made. Creating the additional
resources is sometimes referred to as "expanding the pie." Some would call this
"Win-Win" negotiating. The theory here is that the parties have different
interests which can be integrated (reconciled) to create joint gains. Joint gains
are an improvement for all parties to a negotiation.
INTEREST-BASED
Interest-based bargaining attempts to shift the nature of negotiations to a more

collaborative basis. Instead of moving from position to counter-position to
compromise, negotiators try to identify their interests PRIOR to the development
of solutions. Once interests are identified, the negotiators then jointly develop a
wide-ranging set of alternatives, and then choose the best alternative.

POSITIONS
Positions are "what" the negotiators say they want. They are really solutions
which have been proposed by the negotiators. Positions are based upon the
interests of the parties; interests are usually not disclosed, at least not in
competitive negotiations. In most negotiations people take, and then give up, a
series of positions. Behind every position lie many interests.
INTERESTS
Interests are "why" the negotiators want the positions they take. Interests lie
behind the positions of the negotiators. Interests represent the basic needs to be
met. Money and price are not interests in themselves. Money represents
purchasing power, the ability to acquire other needs, status, or power itself.
Understanding interests is the key to understanding "win-win" negotiating. In
many negotiations the interests are never explicitly discussed. In fact, interests
are usually kept secret. Successful "win-win" negotiating requires finding a way
to disclose interests without being taken advantage of.
BATNA
BATNA stands for the Best Alternative to a Negotiated Agreement. It represents

the best result that a negotiator can get somewhere else if an agreement cannot
be reached with this party. In other words, a BATNA is the alternative that the
party will select if they must walk away from this negotiation. It is an alternative
solution. If the negotiation is a DEAL, the BATNA is to walk away to another
party who can offer you a better deal. If, however, the negotiation is over a law
suit, your BATNA is to go to court.
BOTTOM LINE
The bottom line is the position at which the negotiator will walk away from the
negotiation. It is also known as a reservation price. If the negotiator cannot get
at least their bottom line in the negotiation, they will go somewhere else.
ZONE OF AGREEMENT
The Zone of Agreement represents the difference between the bottom lines of
the parties. If there is no overlap in the bottom lines of the parties, no
agreement is possible

The easiest way to
improve your
negotiation skills is to
A__
M_____
Q________

Two Key Ideas
about Negotiation &
ADR
1) Focus on
________
2) Improve the
______

Basic Principles from Getting To Yes
by Roger Fisher & William Ury
(additional comments by John Barkai)
1. SEPARATE THE PEOPLE FROM THE PROBLEM.

Don't attack or blame the other negotiator; attack the problem which you
are negotiating. Allow the other negotiator to save "face." Try to reduce
the emotional temperature of the situation and to build a good working
relationship. Allow emotions to be expressed without taking it personally
(although this is difficult). Good communication is essential. Ask lots of
questions, especially open-end and clarifying questions. Use active
listening.
2. FOCUS ON INTERESTS NOT POSITIONS.

Positions are "what" negotiators want; "interests" are why they want them.
Ask questions to try to learn their interests. Get into shoes of the other
negotiator. Although problem-solving negotiators may be willing to
disclose their interests, be aware that competitive negotiators will try to
learn your interests, but they will not disclose their own interests.
Remember that not all interests are tangible. Many undisclosed and
unconscious personal needs (Maslow) come to play in negotiations.
Settlements can result from both common and conflicting interests.
3. INVENT OPTIONS FOR MUTUAL GAIN.

Most negotiators take only one negotiation position at a time, but this
approach suggests brainstorming many options and maybe even putting
them all on the table at once. Generate a variety of options before
deciding what to do. Some people would say to enlarge pie before cutting
it.
4. INSIST ON OBJECTIVE CRITERIA.

Instead of allowing the negotiation to be determined by a contest of wills
or power, negotiators can select one of more objective criteria which can
be used to determine the final settlement, e.g., an independent appraisal.
5. KNOW YOUR BATNA.

(Best Alternative To a Negotiated Agreement)
Most people think about a "bottom line" in a negotiation, but seldom do
they think about what they will do if they do not reach settlement. Your
BATNA is what you will have to do if you do not reach agreement. One
way to improve your power in a negotiation is to work on ways of
improving your BATNA. A BATNA is your "Walk-a-way" alternative. Plan
in advance what you will do if the negotiation does not reach a settlement.

GETTING PAST NO
Basic Principles from the book
by William Ury
Whether you are negotiating with a hostage-taker, your boss, or your teenager, the basic
principles remain the same. In summary, the five steps of what the author calls "breakthrough
negotiation" are:
1. Go to the Balcony. The first step is to control your own behavior. When your opponent says no
or launches an attack, you may be stunned into giving in or counterattacking. So, suspend your reaction
by naming the game. Then buy yourself time to think. Use the time to figure out your interests and your
BATNA. Throughout the negotiation, keep your eyes on the prize. Instead of getting mad or getting
even, focus on getting what you want. In short, go to the balcony.
2. Step to Their Side. Before you can negotiate, you must create a favorable climate. You need to
defuse your opponent's anger, fear, and suspicions. He expects you to attack or to resist. So do the
opposite: Listen to him, acknowledge his point, and agree with him wherever you can. Acknowledge his
authority and competence, too. Disarm him by stepping to his side.
3. Don't Reject . . . Reframe. The next step is to change the game. Instead of rejecting your
opponent's position--which usually only reinforces it--direct his attention to the problem of meeting each
side's interests. Take whatever he says and reframe it as an attempt to deal with the problem. Ask
problem-solving questions, such as "Why is it that you want that?" or "What would you do if you were in
my shoes?" or "What if we were to . . . ?" Rather than trying to teach him yourself, let the problem be his
teacher. Reframe his tactics, too: Go around stone walls, deflect attacks, and expose tricks. To change
the game, change the frame.
4. Build Them a Golden Bridge. At last you're ready to negotiate. Your opponent, however, may stall,
not yet convinced of the benefits of agreement. You may be tempted to push and insist, but this will
probably lead him to harden and resist. Instead, do the opposite--draw him in the direction you would
like him to go. Think of yourself as a mediator. Involve him in the process, incorporating his ideas. Try
to identify and satisfy his unmet interests, particularly his basic human needs. Help him save face and
make the outcome appear as a victory for him. Go slow to go fast. In sum, make it easy for him to say
yes by building him a golden bridge.
5. Bring Them to Their Senses, Not Their Knees. If your opponent still resists and thinks he can win
without negotiating, you must educate him to the contrary. You must make it hard form him to say no.
You could use threats and force, but these often backfire; if you push him into a corner, he will likely lash
out, throwing even more resources into the fight against you. Instead, educate him about the costs of not
agreeing. Ask reality-testing questions, warn rather than threaten, and demonstrate your BATNA. Use it
only if necessary and minimize his resistance by exercising restraint and reassuring him that your goal is
mutual satisfaction, not victory. Make sure he knows the golden bridge is always open. In short, use
power to bring him to his senses, not his knees.
The breakthrough strategy requires you to resist normal human temptations and do the opposite
of what you usually feel like doing. It requires you to suspend your reaction when you feel like striking
back, to listen when you feel like talking back, to ask questions when you feel like telling your opponent
the answers, to bridge your differences when you feel like pushing for your way, and to educate when you
feel like escalating.
At every turn the strategy calls on you to choose the path of indirection. You break through by
going around your opponent's resistance, approaching him from the side, acting contrary to his
expectations. The theme throughout the strategy is to treat your opponent with respect--not as an object
to be pushed, but as a person to be persuaded. Rather than trying to change his mind by direct pressure,
you change the environment in which he makes decisions. You let him draw his own conclusions and
make his own choice. Your goal is not to win over him, but to win him over.

Basic Principles from “The Power of a Positive No”
by William Ury (Summarized by Geoffery Lee)
The Positive No exercises your power to protect interests while also tending to
relationships. The Positive No replaces the three common approaches to the power-versus-relationship
dilemma: accommodation (loss of power), attack (loss of relationship), and avoidance (loss of interest).
The Positive No avoids the pitfalls of the three A's by engaging the other in a constructive and respectful
confrontation.
The Positive No is a “Yes! No. Yes?” Saying No means, first, saying “Yes!” to your interests;
followed by a matter-of-fact “No.” that sets a clear limit; ending with “Yes?” that invites the other to reach
an agreement that respects the other's needs.
Stage One – Prepare
1. Uncover your Yes! -- Base “no” on what you are for, not what you are against.
1. Stop: go to the balcony: The first step is to control your own behavior. There is no chance to
influence the other unless you are able to control your own natural reactions and emotions.
2. Use the time out to uncover your underlying interests, needs and values. Reach down to
your core to discover what really matters and what your true priorities are, distilling that into
a single positive intention.
3. The most powerful intentions are positive. Transform negative emotion into positive
intention, clarifying what your really want to do in the situation.
2. Empower your No. -- To be prepared is half the victory.
1. Develop a Plan B: a practical strategy that will address core interests independently of the
other's cooperation and respect: similar to BATNA. Brainstorm a variety of plan B's. Prepare
to: “do it yourself,” “exit,” “look to third parties who share interests.”
2. If your alternatives are extremely unattractive brainstorm again, check your options, and
check the facts. Carefully prepare to gain the confidence to negotiate effectively.
3. Anticipate the other's power moves. -- What can they do to compel you, what can you do to
stand your ground? Take away their threat by changing the situation. Don't let anxiety and
fear magnify potential consequences.
4. Reassess your No. -- Do you have interests in saying no? Do you have the power? Do you
have the right?
3. Respect your way to Yes. -- Give positive attention to others. Act with respect no matter what.
Listen attentively and acknowledge the other, letting them know you value them.
Stage Two – Delivery – Affirmation (Yes!) Establish a Limit (No.) Proposal (Yes?)
1. Express your Yes! -- Affirm your intention and explain why: by using “The” statements to set
out the facts, “I” statements to explain interests, and “We” statements to invoke shared interests
and standards.
2. Assert your No. -- Let your No be simple and straightforward, flowing from your Yes!, flowing
from a commitment to a future course of action, flowing from respect. No is a selection
principle that allows you to be who you are.
3. Propose a Yes? -- As you close one door, open another. Your proposal should clarify and
strengthen your position, while respecting the interests of the other positively.
Stage Three – Follow-through
1. Stay true to your Yes. – If there is disagreement Don't Yield Don't Attack. Go to the Balcony.
Listen respectfully and empathize without sympathizing. Paraphrase. Use: “Oh” to acknowledge
their point neutrally. “So” to let the other run through tactics and tricks. “No” repeat no.
2. Underscore your No. – Emphasize patiently and persistently that No means no. Repeat the No
and employ an anchor phrase. Educate the other with reality-testing questions. Plan B if they
refuse to respect your needs, withdraw cooperation and implement plan with respect.
3. Negotiate to Yes. – Build a Golden Bridge. Facilitate a wise agreement by not compromising
essentials and helping the other address unmet interests. The other should not see the
negotiation as a loss but rather as a satisfactory ongoing agreement. Help them save face. Help
the other win approval from those the other represents. Use the “acceptance speech test” to
find the persuasive arguments, themes, and criticisms for the other's constituency. Cultivate a
healthy relationship. Continue to respect them. Pay more attention to the relationship, rebuild
confidence, and replenish your good will account. End on a positive note.
Strategies for Integrative Bargaining
Facts: A married couple are trying to decide where to spend their two-
week vacation. He wants to go to the mountains; she wants to go to the
seashore.
1. Expanding the Pie.

Increasing the resources to be bargained for. If the resources can
be increased then perhaps both sides can get what they want.
Example: Get four weeks vacation and spend two at the
mountains and two at the seashore.
2. Nonspecific Compensation.
One side gets their objectives and the other side is paid off for
accommodating the other's interests.
Example: W tells H that if he goes to the seashore, she will
buy him a new set of golf clubs.
3. Logrolling.
If two or more issues are in disputes, the negotiators may be able
to do a series of trade-offs. One side gets their top priority on the
first issue and the other side gets their top priority on the second
issue.
Example: H wanted an inexpensive cabin; W wanted a
luxury hotel. If W prefers quality of accommodations to the place,
a luxury hotel in the mountains might meet both their needs.
4. Cost Cutting.
One side gets their objectives and the other's sides costs are
reduced by going along with the first side.
Example: H likes a quiet, peaceful vacation; W likes the
beach because of all the activity. An inexpensive place on a
isolated beach may fit the needs of both.
5. Bridging.
The parties are able to invent new options that meet each side's
needs and interests.
Example: H really wants to hunt and fish; W want to swim,
shop, and enjoy the nightlife. Maybe they can find a resort that has
all of these.

COMMUNICATION
for CONFLICT RESOLUTION
University of Hawaii School of Law
Professionals spend 75 percent of their day in communication activities.
That time is broken down as follows:
COMMUNICATION TIME
45 % Listening
30 % Speaking
16 % Reading
9 % Writing
Thoughts about listening
1. Listening is undervalued in our society.

2. Most people think they are good listeners.
3. You have two ears and one mouth. That's about the right proportion in which to
use them.
4. Because we should listen more than we speak, we should practice it and get
very good at it!
THE BASIC PROBLEM IN LISTENING

# 1: I can listen four times faster than you can speak. I guess I must be a genius.
# 2: No. As a matter of fact, you're really quite average. And, you obviously didn't
understand what I just said.
Most people think at between 450 and 500 words per minute, but most people can only
talk at about 150 words per minute.
The speed difference between listening speed and speaking speed is time most people
spend jumping to conclusions, daydreaming, planning a reply, or mentally arguing with
the speaker.

ACTIVE LISTENING AS VERBAL JUDO
From: George Thompson & Jerry Jenkins, Verbal Judo (1993).
This chapter by George Thompson & Jerry Jenkins from their book Verbal Judo (1993)
describes fourteen benefits of active listening. Thompson & Jenkins use the word
"paraphrasing" instead of "active listening."
The Only Way to Interrupt People

and
Still Have Them Love You
One of the most powerful verbal tools I know is Paraphrasing [paraphrasing is what
John Barkai calls "active listening"].
To paraphrase, put most simply, is to put another person's meaning into your
words and deliver it back to him. If you're taking abuse, you want to somehow intrude
so you can make the diatribe a conversation. Then you can cast what you think lies
behind his aggressive words (his real point) in your own words (which will be calmer
because you're not the emotionally charged one here), and be sure that you have
heard it correctly.
When you paraphrase like that, you have actually inserted yet a third person into
a two-person dialogue. Suddenly you have not his words with his meaning or your
words with your meaning, but your words with his meaning. I'll get into the fourteen
reasons why this is so effective, but first, how do you do this? There are two basic
steps.
THE SWORD OF INSERTION
This weapon is that single sentence that allows you to cut into a tirade and take control.
It's hard to stop people talking. They are upset and they can't be told "Get to the point!"
All that will get you is "I am getting to the point! You're not listening." And don't tell
people to shut up or to calm down or to let you talk, because they won't shut up, they
won't calm down, and they won't let you talk.
So you start with the Sword of Insertion, a wedge into the harangue like "Whoa!"
or "Listen!" (spoken earnestly, not in anger) or "Wait a second."
THE ULTIMATE EMPATHETIC SENTENCE
Here then is the powerful sentence that will allow you to interrupt anyone without fear of
bodily harm: "Let me be sure I heard what you just said."
This simple sentence is so empathetic, so full of conciliation and cooperation, so
pregnant with sincerity, that you'll hardly ever see someone let it slide by. What you're
saying, in essence, is "Let me be sure I understand you. Let me be sure we're on the
same wavelength. Let me be sure I heard that."
You have become the personification of empathy. Everything about that

sentence says you're trying to understand. No matter how upset, just about anyone will
shut up and listen because she too wants to be sure you heard what she said. In fact,
the surer she is that you were not listening, the more likely she is to now hear you out,
if only to prove you wrong!
FOURTEEN BENEFITS OF PARAPHRASING
One. Magically, in one sentence, by paraphrasing you've hooked the other person.
He's listening. Using the Sword of Insertion with that sentence is the only way I know
to interrupt somebody without generating further resistance.
Two. You have taken control because you're talking and he is listening.
Three. You're making sure of what you heard right on the spot, not finding out
later you misunderstood.
Four. If you have not heard the person accurately, he can correct you. That fills
your pockets with ammunition. The more you know about somebody, the better, and
the more he speaks, the more he reveals about his emotions, his prejudices, and his
assumptions. That can only help you in deflecting insults, keeping his attention, and
generating voluntary compliance.
Five. You have made the other person a better listener, because no one listens
harder than he does to his own point of view. You're telling him, "Here's what I hear you
saying," and you can bet he wants to hear that.
Six. You've created empathy. The other person will believe you're trying to
understand. Whether you really are interested is irrelevant. What's important is that
he thinks that you are, and nothing makes him more certain than that Sword of Insertion
sentence "Whoa! Let me sure I heard what you just said."
Seven. Once you have thrust the Sword of Insertion and pronounced the
ultimate empathetic sentence, you have gained attention. Then, to affect this seventh
benefit of paraphrasing you want to immediately follow up with something like this:
"Okay, you are feeling X because of Y, true?" The X equals an emotion, like anger or
frustration, and the Y equals a reason. You don't even have to be right. You're
guessing at this point. For instance, it might go like this: "Whoa! Listen, let me be
sure I understand what you're saying. You're feeling angry because you believe I
purposely undermined you in front of your colleagues yesterday at the meeting."
Now the person can correct either the emotion you used for X or the reason you
used for Y. He might say, "Well, no, I'm not angry. I'm disappointed." Now you're
getting somewhere. Whether he's angry or disappointed will make a difference in
where you go from there. Or he might modify X, the reason. "Yeah, I'm angry, but I'm
not saying you purposely did it."
Notice that my being right is not the issue. Making the attempt to get it right is
the issue, because I'm appearing concerned and it allows the upset person to modify
his original statements. And that's the seventh benefit of paraphrasing. He's becoming
more reasonable, without your having to vainly shout "Be reasonable!" (which never
works).
Eight. Paraphrasing overcomes a strange phenomenon I call "sonic intention."

People often think they have said something because they heard themselves say it in
their mind, or because they had so carefully rehearsed it. Have you ever argued with
your spouse about what was said the night before? You say, "You never said that!"
And he or she says, "Oh yes I did!" Those arguments go on and on. What do you
learn from this? Bottom line: If people think they said something, they said it, and no
amount of argument or evidence will change their minds.
My advice in a situation like that is to give in, because I've tried arguing and I
always wound up sleeping in the pickup truck.
Nine. This advantage is to using paraphrasing is that it has a clarifying effect for
people standing around. When you're dealing with a difficult person in public, whether
in a store or an office or on the street, you don't want to be overheard sounding badly.
Remember the ancient principle: Look good, sound good, or no good. Paraphrasing is
gentle. It tones down the volume and makes a diatribe a conversation. There should
be no condemnation in the completely disinterested voice, the essence of effective
paraphrasing. Paraphrasing should make me sound as if I'm trying to work on the
problem, rather than react to the problem.
Ten. The tenth advantage of paraphrasing is that it prevents metaphrasing--

which I define as putting words (especially inaccurate ones) into other people's mouths.
Metaphrasing is a perversion of paraphrasing.
Too often we're so concerned about what people ought to be saying that we
paraphrase them as we would have said it. That always insults and angers people.
Metaphrasing is useful under only one condition. If you're working as a

dispatcher, working the emergency phones, often you have to take control of a verbal
encounter and extract information quickly. You'll want to use Step 1 of paraphrasing,
the Sword of Insertion, "Whoa! Whoa! Let me be sure I heard what you just said." But
then, instead of paraphrasing, move right to metaphrasing. In short, the person never
again gets into the encounter except to answer pertinent questions. You're guiding the
conversation quickly: "There's somebody in the back of our house? Can you see him?
Does he have a weapon? Is he moving? Clarify your address for me again. We have
officers on the way. What is the man doing? Can he see you?"
From that point on, the person who might otherwise panic and become hysterical
and of no help is giving you information. Though your approach may sound
aggressive, it shows tremendous concern. It gives the comforting impression that you
are helping, that you are in control. Frightened people usually calm down when they
think their crisis is finally being handled by somebody who cares.
I once heard the story of a lady who lived on a street corner where traffic
accidents were common. She learned over the years to deal forthrightly with people
who were injured or scared. One day a particularly hellacious collision resulted in an
old woman being trapped in a car and her son, a middle-aged man, running to the
corner house in a panic. "I don't want my mama to die out there," he wailed.
The lady met him at the door with blankets and a bottle of water and information.
"I have already called the paramedics and they're on their way," she said. "Keep your
mother warm and calm until they get here."
I asked how she knew someone was trapped in a car. "Because he came
running. As soon as I heard the collision, I called nine-one-one and grabbed the
blankets and the bottle. I knew the first thing out of his mouth would be the nature of
the trouble, and I could tell by his face that he was frantic. I figured if I seemed to have
things under control and could convince him his loved one needed to be kept calm, he
would have to calm down too."
In most other situations metaphrasing does not work well, and paraphrasing is
preferable.
Eleven. You can ask for reverse paraphrasing to be sure the other person
understands you. If you want to be a better supervisor, or ensure that your children
understand you, ask that they paraphrase back to you what they take to be your
meaning.
I've found that up to seven of ten people will misread a document and miss the
point. More horrifying, eight of ten misunderstand most verbal exchanges. It's easy to
talk, but it's hard to listen well. And when you ask someone, "Do you understand what
I've just said?" very few people will admit they missed your point. The key is not to ask
for a negative answer. Ask the person to tell you what you said, and you'll get an
accurate reading how you've communicated. Remember, the responsibility for the
understanding belongs to the speaker, not the listener. Your job is to get through.
Be careful not to condescend by implying that you just know the person will
misunderstand. Rather, put the onus on yourself. Ask him to repeat it back to you for
your benefit: "To be sure I said what I intended to say, would you give back what you
understand the point of this discussion has been?" People will do that, and it
safeguards you.
Twelve. You also safeguard yourself by paraphrasing back what your boss or
your spouse or children say. It's possible your supervisor may not say exactly what he
or she meant. If you don't get it right, are you going to win the argument later? You
walk in with a report your boss asked for two weeks before and he hits you with "I told
you I needed you in here at ten o'clock so I could have that for my meeting at eleven.
This report's worthless now."
You know full well he never said ten o'clock, and you thought you were several
hours early with it. Are you going to say, "You never said it had to be to you by ten"?
In the interest of truth, you might try that. But then he or she says, "I most
certainly did, and that was the most important part of the assignment. What's the
matter with you?" Argue that one, right or wrong, and you're liable to be arguing for the
last time. Your only recourse at that point is to say, "I'm sorry. I must not have heard it."
If you had paraphrased before you left the office the first time, your boss would have
heard either that you missed the time deadline or that he or she forgot to mention it. It
would be clarified, and your hard work would eventually pay off.
Don't rely on others to always say what they mean, no matter what their position.
Paraphrase it back. That makes you look good, and it ensures a top level of
professional work. (Besides, bosses love to hear themselves quoted!)
Thirteen. Paraphrasing has an unusual psychological advantage I call

"generating the fair-play response." Whoever you're paraphrasing is almost
psychologically forced to play by the same rules and paraphrase you. People will
generally treat you the way you treat them. It's kind of the Golden Rule again, applied
to communication: Treat others as you would want to be treated under identical
circumstances. So if you use paraphrasing, if you work people skillfully, they're apt--
even despite their intentions--to give you equal time.
Fourteen. Finally, when you paraphrase, it etches the facts in your mind. If you
have to write a report or you're phoning information back to your boss about the facts of
a meeting, the paraphrasing reinforces your own memory. Your report, written or oral,
will be more concise and more accurate.
Because the amazing tool of paraphrasing provides these fourteen different

benefits, you see why I call it the most powerful tool in communication.

REFRAMING
"It all depends on how you look at it."
- Tom Sawyer
Reframing is the process of changing the meaning of an experience. It could be said
that "It all depends on how you look at it." Reframing changes how a person looks at it.
Generally, reframing changes a negative framework to a positive framework.
Is the glass half full or half empty? It depends on how you look at it. Tom Sawyer did
not have to be a painter because he turned out to be a reframer.
You can reframe something for yourself:
"This isn't a terrible job, it's an opportunity".
When you reframe for yourself, you are choosing to see something in a different way.
Assisting others to reframe often involves persuasion.
A therapist's definition of reframing which is useful for our purposes is
changing the emotional setting or viewpoint of situation and placing it in

another frame which fits the "facts" equally well, or even better, changes
its entire meaning.
Therapists have used reframing techniques to turn problems into assets. They turn a
client's negative behavior, thoughts, or feelings into resources. Nothing is imposed or
removed. The perception is altered and used for, not against, the client.

BODY LANGUAGE
In determining the attitude of the

speaker, research shows that up to 93
percent of the message is
communicated nonverbally.
Pay attention to body language, both theirs and yours.
What is their body saying?
Is it reliable?
What is your body saying to them?
Recognize, however, that nonverbal behavior can be

ambiguous. Arms crossed in front of the body may mean
that the listener is hostile to the speaker's message or it
might just mean that the listener is more comfortable
listening with her arms folded.
These days, everyone knows a "little" about body

language so watch yours so that you do not inadvertently
communicate a negative attitude.

NONVERBAL COMMUNICATION FROM THE OTHER SIDE:
SPEAKING BODY LANGUAGE
John L. Barkai
Excerpt from
27 San Diego L. Rev. 101 (1990)
Nonverbal communication has been a major focus of attention for researchers and
practitioners in many different fields for over twenty-five years. Lawyers and businesspeople,
however, seem just beginning to awaken to what others have long known - nonverbal behavior is
extremely important in determining the nature of communication and the relationship between the
communicators.
Everyone has been informally trained since birth in the process of "sending" and "receiving"
nonverbal communication. The popular writers refer to these skills of detecting and interpreting
nonverbal behavior as "reading body language."
In most of the legal writing about reading nonverbal behavior the general hypothesis has been
that by using an analysis of nonverbal behavior, you may be able to determine whether people you
are talking to are receptive to you and your message.
While the focus on reading nonverbal behavior is important, it is, at the same time,
incomplete. We must be aware that nonverbal communication is a two-way street. If you can read
the nonverbal behavior of other people, those other people can also read your body language.
Nonverbal communication can be used during negotiations, mediations, facilitations, and

other meetings.
The central idea presented here is that people can consciously "speak" body language by
adopting certain body postures. A large amount of empirical research in the fields of counseling and
psychotherapy has demonstrated that the body position of the people can significantly affect the
relationship between the people. By speaking body language, you can improve rapport and do
better in negotiations.
To "speak body language" you should adopt what has been called either an "attending
position" or the "postural echo or mirrored position."

TWO PHYSICAL POSITIONS TO TAKE WHEN YOU WANT TO
"SPEAK" BODY LANGUAGE
NONVERBAL COMMUNICATION FROM THE OTHER SIDE:

SPEAKING BODY LANGUAGE
John Barkai
27 San Diego L. Rev. 101 (1990)
The SOLER Position: The easiest to remember description of appropriate nonverbal attending
posture is referred to as the SOLER position. SOLER is an acronym for:
1) SQUARELY facing the client,

2) OPEN body position (arms or legs are not crossed),
3) LEAN forward showing attention,
4) EYE contact that is appropriate, and
5) RELAXED body position.
The SOLER posture is a natural, attentive posture that is unrelated to the posture of the client. This
posture not only conveys that attitude of openness, but it also puts you in the best possible physical
position both to notice important behavior of the other people and to screen out all other distractions.
The SOLER posture can be best implemented if the seating is arranged so that there is no desk
separating the people.
The Mirrored Position: The other suggested position is the postural echo or mirrored position.
This position depends entirely upon the posture of the other person. You should "echo" the posture
of the other person. When two people are in a mirrored position, it is as if there were a mirror
between the two. This postural echo is often seen in everyday life and has been the basis of
considerable experimental research. The theory behind this technique is that people who are in
rapport or who share a common opinion often assume mirrored body positions. Knowing that fact, by
taking a mirrored position, agreement can be communicated nonverbally.
Copy their body posture so it looks as if there is a mirror between you. However, do not mirror
hand and arm movements or make rapid changes in your position.

PLANNING & PREPARATION
for NEGOTIATIONS
Most people prepare for a negotiation by trying to
decide what their "bottom line" is. Their bottom-line is the
worst agreement they would accept. They then decide
how much above their bottom line they will ask for when
they make their first offer. They may also determine a "fall
back" position for their first concession, but that is about
the extent of their planning.
A great improvement can be made in negotiating

planning by systematically considering factors that apply
to virtually every negotiation. Both you and the opposing
side should be analyzed. The "5 Planning Factors" should
be considered in every negotiation. A planning chart can
be used to help you in the planning.
Before and during the negotiations, you should ask

yourself the following questions:
What do I know?
What don't I know yet?
How am I going to find out the information I need?

5 FACTORS
FOR PLANNING
1) PEOPLE
What are the past histories and present feelings of the people involved in this
negotiation? What are their goals and objectives? Who is more powerful and
what is the source of that power? What influences can they bring to bear on this
negotiation? What do you know about their negotiating style?
2) RELATIONSHIP
Do the negotiators or their constituents have any history together? What was
that prior relationship like? How are they getting along now during the
negotiation? Do they have a good relationship? Is it strained? Have they just
met for the first time? Will the parties have a continuing relationship or will this
be a "one-shot" negotiation? Even if the parties are not likely to work together in
the future, will reputations be made in this negotiation that will follow the
negotiators in the community?
3) ISSUES
The issues involved in the negotiation are the topics to be negotiated. They are
also the questions and concerns that each party raises during the negotiation. It
is usually very helpful to frame the issues as questions to be answered rather
than statements that are made.
4) POSITIONS
The positions in the negotiation are the solutions that each person has in mind.
Positions are the "What" that the negotiators want. Many different positions are
considered during a negotiation including, the opening position (demand), a fall
back position, a bottom line, and a BATNA (Best Alternative To A Negotiated
Agreement).
5) INTERESTS
Interests are the basic needs that negotiators seek to be met in any agreement.
If you know the interests, you know "why" the negotiators take the positions they
do during the negotiations. Maslow's hierarchy of needs is helpful here.

NEGOTIATION PLANNING CHART
(Fill in the blocks with information you know.)
PEOPLE RELATIONSHI ISSUES POSITIONS INTERESTS OPTIONS

P
Who: Past: 1. When to disclose? 1. 1.
Initial:
2. 2. 2.
Current:
First Fallback:
US
Negotiation 3. 3. 3.
Styles:
Bottomline:
4. 4. 4.
BATNA:
5.
Desired:
Ways to improve:
6.
7.
Who: Past: 1. Estimated Initial: Estimated:
2.
Negotiation Current: Estimated
Styles: Bottomline:
3. Disclosed:
THEM
4.
Desired: Estimated BATNA:
NEGOTIATIONS: STRATEGIES & TACTICS
A Film
Brainstorming Preliminary meeting to discuss a wide range of ideas & to discuss

strategies and tactics. List ideas without evaluating them.
Blanketing Ask for everything at once.
Bracketing Narrow opponent down to determine what they really will take.
Intimidation Dominating. Playing top dog.
Undermining Put opponent on the defensive. (Dig underneath)
Surprise Change in approach. Show you have information the other side does
not expect. Present new proposals or demands. Emotional outburst.
Feinting Pretending. Lying. A false show to catch the opponent off guard.
Give the impression you want one thing when you really want
another.
Salami Taking something bit-by-bit (one slice at a time) rather than the whole
thing. A small concession asked for at the end of a negotiation is
called a "nibble."
Forbearance To postpone for a period of time. Take time out. "Let's take a break."
Deadline Knowing your opponent's time limit allows you to put pressure on
them. Set a time limit. Push your opponent to make a decision by a
certain time limit.
Good Guy, One person acts tough, a second person acts nice - hoping to
Bad Guy induce a concession.
Limited Claim of not enough authority to be able to approve the deal on the
Authority terms presented.
Fait Accompli An accomplished fact. The thing is already done so argument is
useless.
Silence By using silence, you hope the other side will speak (to their
disadvantage).
Apparent Make opponent think you are unwilling to discuss the issue further.
Withdrawal The goal is to get them to reduce or give up their demand.
Reversal Speaking from the viewpoint of your opponent and incorporating
their interests, you make it sound like your opponent has gotten a
good deal from you. Also means to act in a different way than
expected.

NEGOTIATING TACTICS
AGGRESSIVENESS
ANCHOR
ANGER (Real or Fake)
APPARENT WITHDRAWAL
BACKTRACKING OR UNRAVELING
BLAMING or FAULT-FINDING
BLAND WITHDRAWAL
BOULWAREISM (Take-it-or-leave-it)
DEADLINES
DEADLOCK AND CONCEDE
DRAFTING THE AGREEMENT
DRAFTSMAN OR SINGLE NEGOTIATING TEXT
DUMB IS SMART AND SMART IS DUMB
ESCALATION
EXPLAIN OFFERS AS GAINS
EXPOSE THE JUGULAR
FAIT ACCOMPLI
FALSE DEMANDS
FALSE SCARCITY
FEEL, FELT, FOUND
FEINTING
FIRST OFFER-LARGE DEMAND
FLINCH
FORBEARANCE
GOOD-GUY BAD-GUY
HIGHER AUTHORITY
HOT POTATO
INDUCED COMPETITIVENESS
INSCRUTABILITY
LIMITS
LINKAGE
LOW BALLING
MISLEADING CONCESSION PATTERN
NIBBLE
PARTICIPATION AND ASSOCIATION
PERSISTENCE
PLAYING TO FEARS OR ASSUMPTIONS
PRECEDENTS
“PRECONDITION” DEMANDS
PRINCIPLE
RED HERRING
REINFORCEMENT AND REWARD
RELUCTANCE
REVERSAL
SALAMI (Piecemeal)
SOWING DOUBTS; DISMISSALS OUT-OF-HAND OR PUT-DOWNS
SPLITTING THE DIFFERENCE
STATUS, AUTHORITY, ASSOCIATION AND CREDENTIALING
SURPRISE
ULTIMATUM (take it or leave it)
WALK AWAY
WHIPSAW
YWHTDBTT (You Will Have To Do Better Than That)

NEGOTIATING TACTICS
PLEASE UNDERSTAND THAT NEGOTIATION TACTICS PROBABLY

WORK BEST BETWEEN PEOPLE WHO DO NOT KNOW EACH OTHER WELL
AND WHO WILL NOT BE WORKING TOGETHER IN THE FUTURE. WHEN
YOU ARE NEGOTIATING WITH YOUR FAMILY, FRIENDS, CO-WORKERS,
AND OTHER BUSINESS ASSOCIATES, THINK ABOUT OVERALL
NEGOTIATION STRATEGIES AND ABOUT INTERESTS RATHER THAN
SIMPLY ABOUT NEGOTIATION TACTICS.
When some people come to a course about negotiations, they hope to learn negotiation
tactics that will make them a better negotiator. Negotiation tactics are specific negotiation
behaviors that are used during negotiations. Sometimes tactics are considered the "tricks" of
negotiation. Some tactics are part of the normal, ethical behavior that takes place during
negotiations. Other tactics are considered to be "dirty tricks." Many of the tactics are not true
tactics but are really just personal styles of behavior of people who are engaged in conflict.
Tricks, however, are not likely to make you a better negotiator. Understanding the
negotiation process is the most critical thing to learn about negotiations. Nonetheless, most
people do hope to learn some new tactics at a negotiation course, and hopefully you have
learned some new tactics here. But if you are interested in more tactics, a whole range of
tactics are listed on the following pages. As the tactics are set forth here, no value judgment is
made as to their honesty or usefulness in negotiation.
RESPONDING TO DIRTY TRICKS

If "dirty tricks" are used against you, the best response is to openly identify the tactic for
your opponent and to question its legitimacy.
For example, "You two aren't trying to use the old good-guy bad-guy ploy on me are you?"
Generally, your opponents will deny trying to use the tactic, but will also stop using it.
If you hope to keep the negotiation going, give them some room to back away from the dirty
trick gracefully and to save face.
NEGOTIATING TACTICS
AGGRESSIVENESS
Aggressiveness or the lack of it may be an unchangeable part of one's personality. It
might be useful in negotiations to force the other side into concessions or to make errors.
As with anger, aggressive or competitive behavior is likely to provoke a similar response
from the opposing negotiator.

ANCHOR
Anchoring is fixing or establishing the focus of discussion around a certain point, whether
it is a figure, a range, or and issue, simply by asserting it. Anchoring plays on the human
tendency to fix attention on, and be influenced by, what someone says.
ANGER (Real or Fake)

Anger is a common emotion in many conflicts. It shows a serious disagreement with the
opposing position and may cause a party to reconsider the reasonableness of their
position or to reassess the resistance to that position.
APPARENT WITHDRAWAL
The negotiator appears to have withdrawn from the process and yet still has the
negotiation covered through an associate or by other means.
BACKTRACKING OR UNRAVELING
After a few issues appear to be settled, a negotiator, to get his way on a new
issue, may threaten to undo the earlier agreements.
BLAMING or FAULT-FINDING
Blaming or assigning fault is an aggressive tactic which may invoke conciliatory behavior,
either because of induced guilt feelings or a sensed need to mollify. It may focus
negotiation on a substantively irrelevant, but psychologically volatile or conflictual, issue.
BLAND WITHDRAWAL
One of the negotiators might leave the negotiation without showing emotion or giving an
explanation. A negotiator might take some action and then claim that he did not know
that he was doing something in a way that the other side would object to.
BOULWAREISM (Take-it-or-leave-it)
Lemuel Boulware, former labor negotiator at GE in the 1940s, would do his research and
make what he thought was a fair and reasonable offer to the union. There was only one
offer made. Boulware did not offer any later concessions. It was "Take it, or leave it."
This tactic will not work if the other negotiator expects you to make high demands with
later concessions. In labor negotiations, such a tactic is now considered an unfair labor
practice and is illegal.
DEADLINES
Set deadlines when you want them. "I need your answer by tomorrow at 3 p.m." Ignore
deadlines when you do not want them.
DEADLOCK AND CONCEDE

Negotiator organizes issues with least important issue first and most
important issue second; and then continuing to alternate less important and
more important issues. During bargaining, she deadlocks on the first issue,
but then concedes. She then also deadlocks on the most important issue,
but demands the other side concede since she conceded on the first issue
and there has not been a reciprocal concession.

DRAFTING THE AGREEMENT
Once a deal has been made, it often must be put in writing. The drafter might try to add
some unnegotiated terms into the document. The drafter can be protected from the
other party slipping something in the contract. Either volunteer to do the drafting or be
prepared to give the document a very careful reading.
DRAFTSMAN OR SINGLE NEGOTIATING TEXT

A party to negotiation brings to the table a document drafted as a basic text
to set the agenda. It tends to set the agenda and focus the parties on a
prescribed resolution of issues. A means of taking the initiative in the
negotiations, leaving the other side to work with it, ignore it, offer a counter-
document, or use discipline in dealing with the document.
DUMB IS SMART AND SMART IS DUMB

You are generally better off by acting as if you know less than everybody else. It defuses
the competitive spirit. This is the tactic often used by the TV detective Colombo.
ESCALATION
Most negotiations progress from a set of initial high demands, through a series of
concessions, to a final, lower settlement. Sometimes a negotiator will break away from
this pattern and actually increase or escalate the demands during the course of the
negotiations.
EXPLAIN OFFERS AS GAINS

Psychological research suggests that when people are faced with a small sure gain and
a risky, larger potential gain, they will generally go for the small, sure gain. However,
when faced with a sure small loss and a larger potential loss, people do not want the
small loss. They will hold out against the small, sure loss even if they risk a big, potential
loss. Therefore, you should frame your negotiating proposals as emphasizing gains.
This research suggests avoiding threats.
EXPOSE THE JUGULAR

The loser in a dog fight often rolls over and exposes his neck and soft belly. The winner
usually stops the attack. Sometimes a weak opponent can get more by conceding
weakness. The more powerful negotiator may not always squeeze out the last drops of
blood, but may give a break to the weaker party. But, this is a big risk!
FAIT ACCOMPLI
You present your opponent with a completed and seemingly unchangeable action. Your
opponent accepts rather than opening up the process again. For example, you can send
back a signed contract, but one in which you have made changes. You send a signed
check, but for less money than what they other side wanted.

FALSE DEMANDS
False demands are similar to making large demands. False demands are extra issues
that the negotiator added to the initial demand so that they can be traded away as
concessions. Both false and large demands help to disguise the true bottom line and
interests of the negotiator.
FALSE SCARCITY
Psychologically when faced with a limited commodity, or the commodity becomes scarce
or restricted, people react by wanting more of it than when it was more available.
Negotiators use this psychology be suggesting that the opportunities are quite limited.
FEEL, FELT, FOUND

Agree with them until you can get them to agree with you. There are three verbal steps.
1) FEEL: "I understand the way you FEEL."
(Acceptance, not challenge.)
2) FELT: "Other people have FELT exactly the same way."

(Their responses are normal.)
3) FOUND: "However, those people FOUND that ..."

(Tell how other people have come around.)
FEINTING
An apparent move in one direction is used to divert attention from a move in the other
direction. You look left, and then pass to the right. Mislead them as to your present
intention. You stress goals that are unimportant to you and then give them up for
concessions from the other side that are important to you.
FIRST OFFER-LARGE DEMAND

States an extreme demand, beyond or at the far margin of the range of credible or
reasonable offers. This has the effect of setting the perceived or apparent bargaining
range. Often combined with the tactic of splitting the difference.
FLINCH
React visibly (flinch) when you first hear the offer. Your nonverbal communication (you
can add the verbal too) says "That is much too much!"
FORBEARANCE
Forbearance calls for delaying, holding off, and stalling rather than giving an immediate
response to your opponent’s requests. If you concede too quickly, your opponent might
gain a psychological advantage. Delaying your response might cause your opponents
to rethink their positions. Even when you know that you will reject their offer, if you
delay rather than give an immediate "no," you appear to have thoughtfully considered
their idea.
GOOD-GUY BAD-GUY

The bad-guy works with you first. He leaves the room and his partner, the good-guy,
takes over and apologizes for the other guy's behavior. The good-guy appears to be
your friend. He'll make you a good deal. Guess what? They are working together.
HIGHER AUTHORITY
The negotiator appears to agree with your position, but has to report to a higher
authority. The higher authority is never present, and of course says "No deal" on those
terms. This tactic is very common when buying a new car. "I'd like to give it to you at
the price we talked about," says the salesperson, "but the boss said 'no.'" It is helpful to
claim you must take the proposal to a higher authority, - your client, boss, partner,
spouse, mother, etc.
HOT POTATO
If they hand you a big problem, try to hand it back to them immediately or at least let
the stream out the potato.
INDUCED COMPETITIVENESS
Induced competitiveness converts what would ordinarily be a two party
negotiation into a multi-party negotiation where all the parties interested in
a particular good are forced to compete with one another for it. The
competition makes the item more desirable and drives up its price. An
alternative way of inducing competitiveness is to create an auction for the
item.
INSCRUTABILITY
Inscrutability often comes from using silence and not offering any reactions. This is the
classic poker player's tactic. Don't let them read your cards by reading your face.
Actually, the face often will not leak out nonverbal reactions. Look to the hands and
feet for the nonverbal leakage.
LIMITS
Negotiators can either set and respect limits or refuse to acknowledge them. If the
legislative session must end at midnight, the limits can be changed by unplugging the
clock.
LINKAGE
Linkage attempts to expand the scope of a negotiation by bringing in issues
which, while not clearly related, one can make a plausible case for
considering. The effect is to change bargaining power and leverage, or to
change the focus and character of the dispute or the set of gains or
opportunities the parties are trying to decide. Adding issues or parties can
change the dynamics of negotiation.
LOW BALLING
The negotiator makes a low offer to attract the other side, but there is no intention of
going through with the deal on the terms offered. Later, they will say that there are

"additional" charges or that the circumstances have changed. This is a "bait-and-
switch" tactic.
MISLEADING CONCESSION PATTERN

In theory, a party will make smaller and smaller concessions as bargaining
converges on his bottom line. Knowing this, negotiators can mislead the
other side by using a concession pattern that converges at a point above or
below his actual bottom line. The other side, reading the concession
pattern, may mistakenly conclude the conceder has reached his bottom
line.
NIBBLE
The deal is done, or at least it looked that way. Now one of the negotiators asks for
one more small concession. The concession is so small that the other party often gives
in just so not to upset the deal.
PARTICIPATION AND ASSOCIATION

Get others to join in on your side. Tom Sawyer was good at doing this. Get important
people to work with you. It is negotiating power by careful alliances.
PERSISTENCE
No. No. No. Be persistent in your resistance. Say "no" until your tongue bleeds. The
refusal to move can test the other side’s firmness and uncover just how much
concession room there is.
PLAYING TO FEARS OR ASSUMPTIONS

Negotiators can advantageously manipulate the other side’s fears or
assumptions. Whenever a party discloses in some way that it has made an
assumption favorable to the other side’s bargaining position, the other side
can use that knowledge to its advantage.
PRECEDENTS
As justification for refusing to do what the other negotiator wants you to do, you claim
that the desired action would set a bad precedent for you. "If I do that for you, I will
have to do that for everyone."
“PRECONDITION” DEMANDS
Setting a precondition to negotiation is a way of obtaining a concession without giving
any in return. Demanding satisfaction of a precondition may not only gain a concession
without cost, it may also reveal how eager the other side is to secure a deal. The
response to this tactic is to be clear you consider the precondition a part of the
negotiation, and that you expect a reciprocal concession.
PRINCIPLE
Appeals to principle are often highly persuasive. One good way to prepare
for negotiations is to develop arguments of principle for the positions one
takes.
RED HERRING
A red herring is a false, yet highly distracting, issue that a party can use to
bring pressure to bear on the other side. It is most useful in negotiations
where the parties represent outside constituencies that can be manipulated
to pressure a recalcitrant party. The false demand tactic is a version of the
red herring.
REINFORCEMENT AND REWARD

Treats concessions as rewards for desired concession behavior of the
other side. The concession follows the other side’s concession and is a
more than equivalent concession, the excess being the reward. This
produces more concessions and even stimulates concessions to continue
even when the negotiator stops making reciprocal concessions.
RELUCTANCE
Accept their offers very slowly. If you are too quick to accept, they will think that they
are giving you too much. They may even try to back out on you.
REVERSAL
You move in the opposite direction. By appearing to go backwards (or sideways) you
are actually moving forwards.
SALAMI (Piecemeal)
Do not go for everything at once. Go for it piecemeal. Take one slice at a time until you
get the whole salami.
SOWING DOUBTS; DISMISSALS OUT-OF-HAND OR PUT-DOWNS

Sowing doubts about proposals, or curt dismissals of offers, and various
other kinds of put-downs can undermine the other side’s confidence and
cause it to make faulty judgments about the relative merits of its bargaining
position.
SPLITTING THE DIFFERENCE

When the parties are stuck at different positions, one solution is to each compromise
half the difference. With offers at $600 and $1000, the compromise would be $800.
This technique gives the "appearance" of fairness. But is it fair in your case?
STATUS, AUTHORITY, ASSOCIATION AND CREDENTIALING

Negotiations can be influenced when one side is consciously or
unconsciously impressed by the status, stature, or authority of the other
side, and either defers or makes unwarranted assumptions about the other
side’s power, strength, or resolve. Association is a similar tactic using
borrowed authority, where negotiators seek legitimization by making some
claim of important association (such as name-dropping).
SURPRISE
You make an unexpected move or present a withheld goal. The other side has not
anticipated your shift in methods and arguments. Examples are escalation, walk outs,
new data, and emotional reactions.
ULTIMATUM (take it or leave it)

You claim that this is your last offer. They must take your offer or the negotiation is
over. Say that this is your best and last offer. However, in reality, nothing prevents you
from making another offer at a later time. In2 fact, most negotiations end when the
parties think they have the best offer they can get. Settlement is reached when each
party believes that they cannot get a better deal without spending more time, money,
and emotional energy than the potential improvement over the current situation is
worth.
WALK AWAY
The classic tactic in third-world markets and is often used here too. If you cannot get
the price you want, walk away from the deal and maybe they will follow you. This tactic
is a bluff. To work effectively, you have to be able to truly walk away from this deal and
seek out your BATNA.
WHIPSAW OR “OTHER OFFER”

A potential buyer may play the seller off against another seller (whipsaw the seller with
another source of supply). If the third-party seller is real, they represent a real BATNA
for the buyer. This tactic may work well for a weak buyer. Sometimes, however, the
buyer simply pretends that a another source of supply may exist when in fact it does
not.
YWHTDBTT (You Will Have To Do Better Than That)

If the other side is told "You will have to do better than that," often, they will make you a
better offer. Some people claim to not even read the first offer. They just ask for a
better offer, no matter what the first offer was. They assume that the person who made
the offer made an excessive demand.

TIPS FOR NEGOTIATING WITH A
COMPETITIVE NEGOTIATOR
Flinch.
Take time out.
Remember your BATNA!
Get another opinion.
Ask "how" they will negotiate.
If they don't know what "win-win" means,

they won't be negotiating that way.
Avoid multiple concessions

if your concessions are
not matched by their concessions.
Recognize "dirty tricks"

and comment on them immediately.

Psychological Types and Negotiations:
Conflicts and Solutions as Suggested by
the Myers-Briggs Classification
EXTRAVERSION INTROVERSION E - I
SENSING INTUITION S - N
THINKING FEELING T - F
JUDGMENT PERCEPTION J - P
ISTJ ISFJ INFJ INTJ

11-14% 9-14% 1-3% 2-4%
ISTP ISFP INFP INTP
4-6% 5-9% 4-5% 3-5%
ESTP ESFP ENFP ENTP
4-5% 4-9% 6-8% 2-5%
ESTJ ESFJ ENFJ ENTJ
8-12% 9-13% 2-5% 2-5%
E I S N T F J P
75% 25% 75% 25% 50% 50% 50% 50%
M60/W40
1/16 = 6.25%

20 Question Psychological Type Indicator
Which answer comes closer to telling how you usually feel or act?
1. Are you
(1) easy to get to know, or
(2) hard to get to know?
2. If you were a teacher, would you rather teach
(1) fact courses, or
(2) theory courses?
3. Are you usually
(1) a "good mixer," or
(2) rather quiet and reserved?
4. Do you prefer to
(1) arrange meeting, parties, etc., well in advance, or
(2) keep your options open?
5. Would you rather be considered
(1) a practical person, or
(2) a person with vision?
6. In a large group, do you more often
(1) introduce others, or
(2) get introduced?
7. Does following a schedule
(1) appeal to you, or
(2) cramp you?
8. Do you
(1) talk easily to almost all people for as long as you
have to, or
(2) find a lot to say only to certain people or under certain
conditions?
9. When you go somewhere for the day, would you rather
(1) plan what you will do and when, or
(2) just go?
Which word in each pair appeals to you more? Think what the words mean, not
how they look or how they sound.
1 Point 2 Points
10. Thinking Feeling
11. Facts Ideas
12. Hearty Quiet
13. Convincing Touching
14. Scheduled Unplanned
15. Statement Concept
16. Analyze Sympathize
17. Systematic Spontaneous
18. Determined Devoted
19. Concrete Abstract
20. Firmminded Warmhearted

Transfer the 1 or 2 points from each question above
to the columns below and total. BE CAREFUL, the
question numbers are not in sequence!
1. 2. 10. 4.
3. 5. 13. 7.
6. 11. 16. 9.
8. 15. 18. 14.
12. 19. 20. 17.

Total Total Total Total
Circle the one letter in each column that is next
to your total points in that column above.
5 5 5 5
E 6 S 6 T 6 J 6
7 7 7 7
8 8 8 8
I 9 N 9 F 9 P 9
10 10 10 10
My type is:
_____ ______ ______
Adapted from the Myers-Briggs Type Indicator
BOOKS AVAILABLE ABOUT THE MYERS-BRIGGS

O. Kroger & J. Thuesen, Type Talk At Work (1992).
O. Kroger & J. Thuesen, Type Talk (1988). *
D. Keirsey & M. Bates, Please Understand Me (1984). *
I. Briggs Myers, Gifts Differing (1980).
G. Lawrence, People Types & Tiger Stripes (1979).
(MBTI in education. Good on learning styles.)
S. Hirsh & J. Kummerow, Lifetypes (1989). (Good book.) *
*(means available in most book stores and in the public library.)

Characteristics Frequently Associated with each of the Myers-Briggs Psychological Types
Source: Myers & McCaulley, Manual: A Guide to the Development and Use of the Myers-Briggs Type Indicator
ISTJ ISFJ INFJ INTJ
Serious, quiet, earn success by concentration and Quiet, friendly, responsible, and Succeed by perseverance, originality, and Usually have original minds and great drive for
thoroughness. Practical, orderly, matter-of-fact, logical, conscientious. Work devotedly lo meet their desire to do whatever is needed or wanted. their own ideas and purposes. In fields that
realistic, and dependable. See to it that everything is obligations. Lend stability lo any project or Put their best efforts into their work. Quietly appeal to them, they have a fine power to
well organized. Take responsibility. Make up their own group. Thorough, painstaking, accurate. Their forceful, conscientious, concerned for others. organize a job and carry it through with or
minds as to what should be accomplished and work interests are usually not technical. Can be Respected for their firm principles. Likely to without help. Skeptical, critical, independent,
toward it steadily, regardless of protests or distractions. patient with necessary details Loyal, be honored and followed for their clear determined, sometimes stubborn. Must learn
considerate, perceptive, concerned with how convictions as to how best to serve the to yield less important points in order to win
other people feel common good the most important.
ISTP ISFP INFP INTP
Cool onlookers-quiet, reserved, observing and Retiring, quietly friendly. sensitive. kind, Full of enthusiasms and loyalties, but seldom Quiet and reserved. Especially enjoy
analyzing life with detached curiosity and unexpected modest about their abilities. Shun talk of these until they know you well. Care theoretical or scientific pursuits. Like solving
flashes of original humor. Usually interested in cause disagreements, do not force their opinions or about learning, ideas, language, and problems with logic and analysis. Usually
and effect. How and why mechanical things work, and values on others. Usually do not care to lead independent projects of their own. Tend to interested mainly in ideas, with little liking for
in organizing facts using logical principles. but are often loyal followers. Often relaxed undertake too much, then somehow get it parties or small talk. Tend to have sharply
about getting things done, because they enjoy done. Friendly, but often too absorbed in what defined interests. Need careers where some
the present moment and do not want to spoil it they are doing to be sociable. Little concerned strong interest can be used and useful.
by undue haste or exertion. with possessions or physical surroundings.
ESTP ESFP ENFP ENTP
Good at on-the-spot problem solving. Do no, worry, Outgoing, easygoing, accepting, friendly, Warmly enthusiastic, high-spirited, ingenious, Quick, ingenious, good at many things.
enjoy whatever comes along. Tend to like mechanical enjoy everything and make things more fun for imaginative. Able to do almost anything that Stimulating company, alert and outspoken.
things and sports, with friends on the side Adaptable, others by their enjoyment. Like sports and interests them. Quick with a solution for any May argue for fun on either side of a question.
tolerant, generally conservative in values. Dislike long making things happen. Know what's going on difficulty and ready to help anyone with a Resourceful in solving new and challenging
explanations. Are best with real things that can be and join in eagerly. Find remembering facts problem. Often rely on their ability to improvise problems, but may neglect routine
worked, handled, taken apart, or put together. easier than mastering theories. Are best in instead of preparing in advance. Can usually assignments. Apt to turn to one new interest
situations that need sound common sense find compelling reasons for whatever they after another. Skilful in finding logical reasons
and practical ability with people as well as with want. for what they want.
things.
ESTJ ESFJ ENFJ ENTJ
Practical, realistic, matter-of-fact, with a natural head Warm-hearted, talkative, Popular, Responsive and responsible. Generally feel Hearty, frank, decisive, leaders in activities
for business of mechanics. Not interested in subjects conscientious, born cooperators, active real concern for what others think or want, and Usually good in anything that requires
they see no use for, but can apply themselves when committee members. Need harmony and may try to handle things with due regard for the reasoning and intelligent talk, such as public
necessary, Like to organize and run activities. May be good at creating it. Always doing something other person's feelings. Can present a speaking Are usually well informed and enjoy
make good administrators, especially if they remember nice for someone. Work best with proposal or lead a group discussion with ease adding to their fund of knowledge. May
to consider others' feelings and points of view. encouragement and praise. Main interest is in and tact. Sociable, popular, sympathetic. sometimes appear more positive and confident
things that directly and visibly affect People's Responsive lo praise and criticism. than their experience in an area warrants.
lives.

Prayers for each of the Myers-Briggs Psychological Types
ISTJ ISFJ INFJ INTJ
God, help me to begin Lord, help me to be Lord help me Lord, keep me open
RELAXING more laid back, and not be a perfectionist. to others' ideas,
about little details help be to do it (Did I spell WRONG
tomorrow at 11:41.32 am exactly right! that correctly?)
though they maybe!
ISTP ISFP INFP INTP
God, help me to Lord, help me to Lord, help me to Lord, help me be

consider stand up for my finish less independent,
people's feelings, RIGHTS! but let me
everything
even if most of them (if you don't do it
I
are hypersensitive mind my asking)
sta MY way.
ESTP ESFP ENFP ENTP
God, God, God, God, help me

help me to take Help me to Help me keep follow established
responsibility take things more my mind on one th--- procedures today.
for my own actions, seriously Look! A Bird! On second thought,
even though they're especially ing I'll
usually not my fault! parties & dancing at a time settle for a few minutes.
ESTJ ESFJ ENFJ ENTJ
God, help me to not try to Lord, give me God, help me to do God, help me to
RUN everything. patience only what I can, slow
But, if you and and trust you for the rest. downandnot
need some help, I mean right Do you mind putting that rushthrough
JUST ASK! NOW! in writing? whatIdoAmen
© 1987 Ellis Harsham

Guesses of Psychological Types of Famous People
ISTJ ISFJ INFJ INTJ

Sparky Anderson, Rosalynn Carter, Sam Donaldson, Jesse Louisa May Alcott, Alfred Lord Tennyson, Barbara Woody Allen, Clara Barton, Shirley Temple Black, Dan Akroyd, Susan B. Anthony, Arthur Ashe, Caesar,
Helms, Jackie Joyner-Kersee, Cathy Rigby, Jack Webb, U.S. Bush, Princess Diana, Charles Dickens, Queen Geoffrey Chaucer, Agatha Christie, Billy Crystal, Jane Austen, William F. Buckley, Raymond Burr,
Presidents: (most frequent type) George H. W. Bush, Calvin Elizabeth II, Michael Jordan, Robert E. Lee, Ed Bob Dylan, Martin Luther King, Michael Landon, Chevy Chase, Phil Donahue, Michael Dukakis, Bryant
Coolidge, Dwight D. Eisenhower, Benjamin Harrison, Herbert McMahon, Mary Tyler Moore, Marie Osmond, O. J. Shirley MacClaine, Florence Nightingale, Ryan Gumbel, Hannibal, Charles Everett Koop, C. S. Lewis,
Hoover, Andrew Johnson, George Washington Simpson, Kristi Yamaguchi, U.S. President William O'Neal, Tom Selleck, Paul Stookey (Peter, Paul and Joan Lunden, Edwin Moses, Martina Navratilova,
Howard Taft, Fictional: David Copperfield, Ophelia, Mary), Mother Teresa, Oprah Winfrey, U.S. Pernell Roberts, Maria Shriver, U.S. Presidents:
Porky Pig, Watson (Sherlock Holmes' sidekick) Presidents Martin Van Buren & Jimmy Carter Chester A. Arthur, Thomas Jefferson, John F. Kennedy,
James Polk, Woodrow Wilson
ISTP ISFP INFP INTP

Humphrey Bogart, Charles Bronson, Johnny Cash, Cher, Tom Paula Abdul, Andre Agassi, Fred Astaire, Yogi Tom Brokaw, Joyce Brothers, Dick Clark, Neil John Barkai, Macauley Culkin, Charles Darwin, Rene
Cruise, James Dean, Clint Eastwood, Peter Fonda, Ernest Berra, Doris Day, Michael Jackson, Ervin "Magic" Diamond, Anne Frank, Judy Garland, Audrey Descartes, Albert Einstein, Thor Heyerdahl, Ron
Hemingway, Kris Kristofferson, Willie Nelson, Burt Reynolds, Johnson, Greg Louganis, Marie Antoinette, Marilyn Hepburn, Homer, Helen Keller, Henry Wadsworth Howard, Midori Ito, C. G. Jung, Henry Mancini, Bob
Keith Richards, Frank Sinatra, Sylvester Stallone, Patrick Monroe, Olivia Newton-John, Dan Quayle, Debbie Longfellow, St. Luke, Mary - mother of Jesus, Newhart, Sir Isaac Newton, Leonard Nimoy, Blaise
Swayze, Frank Zappa, U.S. Presidents Millard Fillmore & Reynolds, Doc Severinson, Brooke Shields, Donald Jacqueline Kennedy Onassis, Donna Reed, Carl Pascal, Rob Reiner, Socrates, Meryl Streep, U.S.
Zachary Taylor, Fictional: "The Fonz," Hedda Gabler, Popeye Sutherland, Elizabeth Taylor, U.S. President Rogers, Amy Tan, James Taylor, Virgil, Fictional: Presidents: John Quincy Adams, Gerald Ford, James
the Sailor, Willy, the killer whale Ulysses S. Grant Calvin, E.T., Hamlet - Prince of Denmark Madison, John Tyler, Fictional: Linus ("Peanuts")
ESTP ESFP ENFP ENTP

Lucille Ball, Jimmy Conners, Michael J. Fox, W. C. Fields, Gracie Allen, Peggy Cass, Carol Channing, Dale Julie Andrews, "Dr." Seuss, Burl Ives, Captain Alexander the Great, John Candy, Lewis Carrol, Sir
Joe Garagiola, Marvin Haglar, King Henry VIII, Reggie Evans, Eva Gabor, Kathy Lee Griffith, Arsenio Hall, Kangaroo, Hayley Mills, Elizabeth Montgomery, Winston Churchill, Bill Cosby, Thomas Edison, Alfred
Jackson, Evel Knievel, John Madden, Madonna, Eddie Woody Harrelson, Goldie Hawn, Bob Hope, Mary Geraldo Rivera, Andy Rooney, Mickey Rooney, Hitchcock, Groucho Marx, Wolfgang Amadeus Mozart,
Murphy, Jack Nicholson, Colin Powell, Don Rickles, Joan Queen of Scots, Jim Nabors, Dolly Parton, Kyle Dave Thomas (owner of Wendy's hamburger), British Admiral Nelson, Sir Walter Raleigh, George
Rivers, Roy Rogers, Wesley Snipes, Mr. T, John Wayne, Mae Petty, Mary Lou Retton, Will Rogers, Meg Ryan, Robin Williams, Cathy (comic strip character) Bernard Shaw, John Sununu, Lily Tomlin, Oscar
West, Chuck Yeager, U.S. Presidents: James Buchanan, Willard Scott, Red Skelton, Suzanne Somers, Jim Wilde, Gene Wilder, Weird Al Yankovic, U.S.
Andrew Jackson, Franklin Pierce, Theodore "Teddy" Varney (Ernest_ movies), U.S. President Warren G. Presidents: John Adams, James A. Garfield,
Roosevelt, Fictional: Scarlett O'Hara Harding Rutherford B. Hayes, Finctional: Bugs Bunny, Wile E.
Coyote, Garfield The Cat
ESTJ ESFJ ENFJ ENTJ

Bonnie Blair, Lloyd Bridges, Bette Davis, Rev. Billy Graham, Desi Arnaz, Jack Benny, Carol Burnett, LeVar Mario Cuomo, David - King of Israel, Elizabeth Alan Alda, Lamar Alexander, Les Aspen, Candace
Carl Lewis, John D. Rockefeller, U.S. Senator Robert A. Taft, Burton, John Connally, Nancy Kerrigan, Don Dole, Dick Van Dyke, James Garner, Andy Griffith, Bergen, Anita Bryant, Julius Caesar, Cicero, Sean
U.S. Presidents: Grover Cleveland, Lyndon B. Johnson, Knotts, Griffith Show", Reba McIntire, Vincent Price, Abraham Maslow, Francois Mitterand, Wayne Connery (James Bond - 007), Howard Cosell, Queen
James Monroe, Harry S. Truman, Fictional: Lucy (Peanuts Marilyn Quayle, Julia Roberts, Steve Spurrier, Newton, Ross Perot, President Abraham Lincoln Elizabeth I, Harrison Ford, Whoopi Goldberg, Al Gore,
cartoon character) Jimmie Stewart, Sally Struthers, U.S. Presidents: Garrison Keillor, Jay Leno, Dave Letterman, Rush
William J. Clinton, William Henry 'Tippecanoe' Limbaugh, Tony Orlando, Antonin Scalia, Norman
Harrison, William McKinley, Ronald M. Reagan, Schwarzkopf, Margaret Thatcher, Sigourney Weaver,
Fictional: Hoss Cartwright, Donald Duck, Ricky U.S. Presidents Richard M. Nixon & Franklin D.
Ricardo ("I Love Lucy") Roosevelt, Daffy Duck, Yogi Bear

DESCRIPTIONS OF EACH TYPE
ENFJ: Everyone Need Fulfillment & Joy
"Pedagogue". Outstanding leader of groups. Can be aggressive
at helping others to be the best that they can be. 5% of the total
population.
INFJ: Inner Nuances Foster Journeys

"Author". Strong drive and enjoyment to help others. Complex
personality. 1% of the total population.
ENFP: Every day, New Fantastic Possibilities

"Journalist". Uncanny sense of the motivations of others. Life is
an exciting drama. 5% of the total population.
INFP: I Never Find Perfection

"Questor". High capacity for caring. Calm and pleasant face to
the world. High sense of honor derived from internal values. 1%
of the total population.
ENTJ: Executives Need Tough Jobs

"Field Marshall". The basic driving force and need is to lead. Tend
to seek a position of responsibility and enjoys
being an executive. 5% of the total population.
INTJ: It's Not Thoroughly Justified

"Scientist". Most self-confident and pragmatic of all the types.
Decisions come very easily. A builder of systems and the applier
of theoretical models. 1% of the total population.
ENTP: Each New Thought Propels

"Inventor". Enthusiastic interest in everything and always
sensitive to possibilities. Non-conformist and innovative. 5% of
the total population.
INTP: It's Not Theoretically Possible

"Architect". Greatest precision in thought and language. Can
readily discern contradictions and inconsistencies. The world
exists primarily to be understood. 1% of the total population.
ESTJ: Execution Saves The Job

"Administrator". Much in touch with the external environment.
Very responsible. Pillar of strength. 13% of the total population.
ISTJ: I Save Things Judiciously

"Trustee". Decisiveness in practical affairs. Guardian of
time-honored institutions. Dependable. 6% of the total
population.
ESFJ: Extra Special Friendly Joiner

"Seller". Most sociable of all types. Nurturer of harmony.
Outstanding host or hostesses. 13% of the total population.
ISFJ: I Serve Family Joyfully

"Conservator". Desires to be of service and to minister to
individual needs - very loyal. 6% of the total population.
ESTP: Everyone Seems Too Proper

"Promotor". Action! When present, things begin to happen.
Fiercely competitive. Entrepreneur. Often uses shock effect to get
attention. Negotiator par excellence. 13% of the total population.
ESFP: Extra Special Friendly Person

"Entertainer". Radiates attractive warmth and optimism. Smooth,
witty, charming, clever. Fun to be with. Very generous. 13% of
the total population.
ISTP: I See The Problem

"Artisan". Impulsive action. Life should be of impulse rather than
of purpose. Action is an end to itself. Fearless, craves
excitement, master of tools. 5% of the total population.
ISFP: I Seek Fun & Pleasure

"Artist". Interested in the fine arts. Expression primarily through
action or art form. The senses are keener than in other types. 5%
of the total population.

HOW WOULD YOU NEGOTIATE WITH THESE TYPES?
John Barkai - University of Hawaii Law School
EXTRAVERTS INTROVERTS SENSORS INTUITIVES THINKERS FEELERS JUDGERS PERCEIVERS
E I S N T F J P
Outer directed Inner directed The 5 senses Possibilities, Objective Subjective, Like control & Want more
not realities personal structure information
Energy & Quiet Practical Logical values
excitement reality See the Big Want to get it Keep options
DESCRIPTIONS
People drain Picture Focus on the Harmony decided open
Love "people" them Status quo task
action Theoretical Sociable & Aggressive Dislike
overview friendly decision schedules
makers
Fast & Slow & quiet Hear things Jump around Brief & Talk story Discuss Informal style
talkative literally a lot concise aggressively
Internally Friendly Love to
Think out loud thoughtful Step-by-step Hear things Impersonal Quick to decide brainstorm
COMMUNICATION
figuratively terms Perhaps time
STYLE Ready, fire, Ready, ready, They don't consuming Look for Discuss
aim ready, aim, brainstorm Consider facts Pros & Cons someone to contingencies
aim much as limits blame
NEGOTIATING
WITH THIS TYPE
TIPS
IF YOU ARE
THIS TYPE

THE BASIC COMMUNICATION LOOP
CODE DECODE
SPEAKER LISTENER
LISTENER SPEAKER
DECODE CODE

What do you think is one of
the most important issues facing
Hawaii in the next 10 years?
Tell me more about that.
What do you mean by that?
Can you put that in other words?
How do you feel about that?
What do you mean by ?
Can you be more specific?
How so?
In what way?
That's helpful, keep going.
Humm, hum.

ACTIVE LISTENING
- saying what they just said, elegantly.
Speaker Active Listener Speaker Comments

(Instructor) (Student) Continues
1 I had a terrible What I hear you Yeah, that's what I Classic active
day today. saying is you had a said. Are you listening.
terrible day today. feeling OK today? Uses
introductory
phrase.
Repeats exact
words.
2 I had a terrible ... a terrible day? Yeah, nothing went Skips
day today. right, and then introductory
there was that thing phrase.
with my boss. Repeats a few
of the exact
words.
3 The boss ... blamed by the Yeah, he was going Paraphrased,
screamed at boss? on and on about it. but still not a
me about complete
some sentence.
assignment.
4 He was being ... unfairly blaming No, actually it did Speaker
unfair. I didn't you? turn out to be my corrects
even know fault. But he inaccurate
what he was shouldn't have active listener.
talking about. acted like that with
my co-workers
around.
5 How do you ... you are very Of course I am. No Active listening
think you disturbed about this. one should have to used instead of
would feel if go through answering the
that happened something like that. question.
to you?
6 [if they go on Wait a minute! Let Active listening
and on and on me see if I is used to
and on and on] understand you interrupt
correctly. without
offending.

Communication Techniques
Open-ended Questions, Follow-up Questions, and Active Listening
Speaker Listener Technique

1. What do you think is one of the most important skills Open-ended
for negotiators? Question
2. Ah, I'd say communication skills. Open-ended,

3. Tell me more about that. Follow-up Question
4. Sure. Negotiators need to be able to collect information and

to persuade people. Of course they need to communicate to do 5. What do you mean by "collect information?"
that. Clarifying
6. Negotiators need to learn information from other people. So

negotiators "collect" this information by asking appropriate
questions and using other communication techniques.
7. Humm, hum. Passive Listening
8. After they have collected the information they then use it in

some way. 9. Can you be more specific? Narrowing
10. Sure. When negotiators learn about the other side's interest,
they can use that information during the negotiation. 11. That's helpful, keep going. Facilitator
12. They use techniques like open-ended questions, follow-up

questions, clarifying questions, and active listening. 13. How so? Open-ended
14. They use these techniques to gather information from their 15. They collect the information by using these Summarization
opponent. techniques? Active Listening
16. Yes, the good communicators collect the information which is Open-ended Question
an important foundation for the negotiation. 17. How do you feel about that? Probe for Feelings
18. I think it is one of the most important things that negotiators 19. So you think communication is important, but many Summarization
do, and unfortunately, many negotiators neglect these skills. negotiators neglect it? Active Listening
20. Right. Negotiators should realize that good communication 21. Thanks. You have helped me to better understand
techniques can help them to be successful, and they should pay your views about communication. And, I hope I have
attention to, and practice good communication techniques. helped you demonstrate some of the techniques that you
have talked about.

REFRAMING
Is the glass half full or half empty?
"It all depends on how you look at it."

- Tom Sawyer
Reframing restating another person's statement to make it less

provocative and more productive.
When you reframe for yourself, you are choosing to see something in a different way or
from a different perspective. Assisting others to reframe often involves persuasion.
Tom Sawyer did not have to be a painter because he turned out to be a great reframer.
He convinced his friends that what seemed to be an unpleasant task of painting a fence
was really a fun activity worth paying to do.
How can you reframe the following common "couples complaints?"
REFRAMING
Negative Statement Reframed
She talks too much She's so friendly and puts everyone at
ease.
He argues so much He has such strong convictions
She thinks she knows it all
He is so conceited
She too easygoing
He's so stingy
She spends too much money
He's too rigid
She can never sit still

USING THE MYERS-BRIGGS FOR CONFLICT RESOLUTION
EXTRAVERTS INTROVERTS SENSORS INTUITIVES THINKERS FEELERS JUDGERS PERCEIVERS
E I S N T F J P
Outer directed Inner directed The 5 senses Possibilities, not Objective Subjective, Like control & Want more
realities personal values structure information
Energy & Quiet Practical reality Logical
DESCRIPTIONS excitement See the Big Harmony Want to get it Keep options
People drain Status quo Picture Focus on the decided open
Love "people" them task Sociable &
action Theoretical friendly Aggressive Dislike schedules
overview decision makers
Fast & talkative Slow & quiet Hear things Jump around a Brief & concise Talk story Discuss Informal style
literally lot aggressively
Think out loud Internally Impersonal Friendly Love to
COMMUNICATION thoughtful Step-by-step Hear things terms Quick to decide brainstorm
STYLE Ready, fire, aim figuratively Perhaps time
Ready, ready, They don't Pros & Cons consuming Look for someone Discuss
ready, aim, aim brainstorm Consider facts to blame contingencies
much as limits
Small talk is ok Draw them out Stay in the Brainstorm Be logical & Be interested in They need Don't constrain
"here-and-now" novel ideas organized people structure them
NEGOTIATING Ask open-ended Give them time
questions to think A concern for Use metaphors Cost-benefit Start w/ points Get details before Expect last
WITH THIS TYPE history & analogies analysis of agreement closure minute changes
If impasse, Send it in
change energy writing Factual, precise Assist getting to Avoid Don't criticize They sound Help them select
& detailed action emotions them definite among options
TIPS Slow down & Be clear & More than just Stick to the Allow some Don't take it Do you have all Reduce the
listen forceful the facts issues emotions personally the facts? options available
IF YOU ARE
Warn them Once is not Peel the onion Settle easy Find out what Be brief & don't Don't speak in Assert your
THIS TYPE about you enough things first they feel repeat conclusions preferences
Same fact cuts
Get them to Smile both ways Don't overlook What are the Maybe you can't Allow others Just pick one
brainstorm details "people" have harmony some time
issues?

The Hawaii Mediation Model
"Applying The Hawaiian Mediation Model To Disputes and Conflicts"
11 Interspectives 40 (1992)
Introduction
In its simplest form, mediation is a conflict resolution method in which a mediator

helps two people negotiate a voluntary solution to their dispute. What makes mediation
different from other third-party dispute resolution processes is that the mediator does
not have the power to decide who "wins" the dispute or what the solution should be.
The mediator is neutral and provides nonjudgmental management of the

negotiation process. Even though the mediator has no power to decide, mediation is a
powerful and successful dispute resolution process. The majority of mediated conflicts
result in negotiated solutions that are satisfactory to all the disputants. Statistics from
mediation centers indicate that approximately 85 percent of the mediations end in
agreements. Even if there is no mediated solution, the disputants are no worse off than
before the mediation.
A Basic Model of Mediation
The basic mediation process can be most clearly identified in its purest form by
looking at the mediation of minor disputes. Mediators of minor disputes devote their
attention to managing the mediation process and using techniques which allow the
disputants to 1) identify, clarify, and communicate the issues and interests in dispute, 2)
effectively negotiate with each other, and 3) structure a settlement that is fair and
workable from their perspectives.
Especially in minor disputes, the mediator has no way of knowing what a fair and
workable settlement would be from the disputants' perspectives. In addition, there is no
legal standard by which to judge, for example, how much noise to too much for the
neighborhood or how the children of the neighbors should relate to each other.
Because the disputants have to live with any negotiated agreement, the disputants (not
the mediator) are the people in the best position to decide what is the best, most
workable solution.
The native Hawaiian people had their own family problem solving process called
Ho'oponopono. [See, V. Shook, Ho'oponopono: Contemporary Uses of a Hawaiian
Problem-Solving Process. Honolulu: University of Hawaii Press (1985).] This article,
however, focuses on the contemporary, community mediation process in Hawaii.
Formal mediation began in Hawaii in 1979 with the establishment of the Neighborhood
Justice Center (NJC) of Honolulu. The following model of mediation was developed
over more than a decade and thousands of mediations at the NJC. The mediation
model presented here has been revised and refined as a result of the experiences of
many volunteer mediators and almost countless mediator trainings.

The Core Process
The core process of mediation is designed around two central tasks: 1) defining
the problems, and 2) negotiating solutions. When teaching mediation in Hawaii, the
mediation process is conceptually divided into two phases referred to as the "Forum"
and the "Negotiation." Each phase is in turn divided into three stages.
The Forum includes: 1) the mediator's opening statement, 2)
the disputants' statements, and 3) private meetings called
"caucuses" with each disputant to discover all the issues and
interests important to a fair, workable solution. The
Negotiation includes: 1) a second round of private caucuses with
each disputant to define options and begin the bargaining, 2) a
joint session with all disputants to negotiate the general terms
of the agreement, and 3) a drafting session that results in a
specific, written agreement. Such a mediation process can be
diagramed as two triangles, each with three layers, as seen
below.
The Mediation Process
Phases Conceptual Model Stages
Mediator's Opening
Forum
Disputants' Statements
First Caucuses
Second Caucuses
Negotiation
Joint Session
Draft Agreement

A. The Forum Phase
The Forum phase, represented by the top triangle, starts with the mediator's
opening statement, then allows each disputant to tell their view of the conflict, and
finally moves to caucuses with each disputant. In the mediator's opening statement,
the mediator first convenes the meeting by discussing the voluntary, confidential, and
impartial nature of the process. In addition, the mediation process is described
generally (especially the confidential caucuses), and it is stressed that the mediator will
not issue a decision as a judge would in court. Next, in the disputants' statement stage,
each disputant is asked to make a short statement about their view of the conflict and
the other disputant is asked to not interrupt. Finally, the mediation moves into a series
of confidential caucuses with just the mediator and one of the disputants present. As
the mediator process moves to the caucus stage, the upper triangle has its widest part,
signifying the increasing amount of information that becomes available to the mediator
and the disputants as issues, positions, interest, feelings, and hidden agendas are
discussed and clarified in the caucuses.
The full development of facts and feelings in the Forum phase offers the greatest
opportunity to create in the Negotiation phase a cooperative, integrative solution - what
some people refer to as a "win-win" solution. As the mediator uses this Forum phase to
learn the history of the conflict, the disputants often focus on just the facts which
support their view of the conflict. In both joint meetings and especially in the
caucuses, the mediator probes beyond the apparent facts to learn the disputants'
underlying interests and feelings about the conflict. During the Forum, the time focus is
on the past and the present.
B. The Negotiation Phase
In the Negotiation phase, represented by the second, inverted triangle, the

mediator shifts the focus to the future and assists the disputants to negotiate solutions
based upon their interests. The Negotiation usually begins with another series of
caucuses. The caucuses are used to move the disputants off their current negotiating
positions by asking them to brainstorm possible solutions to the problem. Mediators
can use a number of techniques to narrow the differences between the disputants and
allow them to save face. Common mediator tactics are to review the good parts of the
prior relationship, create doubts, stress the consequences of no agreement, provide
reality testing about proposed solutions, and emphasize the progress that has been
made. Several caucuses may be necessary.
When the disputants appear ready to bargain effectively face-to-face, the

mediator brings the disputants together for a joint meeting. Although the mediator may
still manage the bargaining as mutual concessions are proposed and accepted, the
disputants are encouraged to negotiate directly with one another. Finally, as the
disputants work out the solution, the mediator assists them by drafting a written
agreement that is balanced, specific, complete, workable and in the disputants' own
words.

C. A Communication Focus
Throughout the entire mediation process, Hawaiian mediators use facilitative

communication techniques. During the Forum, the mediators try to get the disputants
to reveal and clarify their interests and express their feelings by using various
communication techniques such as open-ended questions, clarifying questions, and
active listening. Mediators often summarize to acknowledge what the disputants have
said, to prevent repetitive accounts, and to check their understanding of what the
disputants mean. They use active listening to acknowledge the disputants' feelings
because feelings can be as important to a solution as the facts. Mediators also
"reframe" the disputants' language to eliminate blame and the attribution of motives.
A fundamental hypothesis of Hawaii community mediation model is that the

disputants are in charge of their own dispute. Hence, during the Negotiation phase the
disputants are expected and encouraged to create their own solutions to the conflict.
Acting under the assumption that disputants are more likely to move from their
entrenched negotiation positions towards mutually acceptable solutions if the basis of
the solutions comes from a disputant's own mouth rather than if suggested by someone
else, mediators are taught to refrain from giving advice. Hence, rather that make direct
suggestions to the disputants, mediators ask well crafted questions that are intended to
stimulate the creative thinking of the disputants.
The Neighborhood Justice Center
The basic mediation model described in this article is used in many different
types of disputes in Hawaii, including complex, multi-party construction cases in court,
bitterly contested divorce proceedings, minor neighbor-neighbor disputes, and for
playground conflicts mediated by grade school children. When the mediation is done
at the Neighborhood Justice Center, the mediators are community volunteers from a
wide variety of backgrounds and professions, who mediate without compensation. All
such mediators have gone through at least 40 hours of training using role plays and
debriefing sessions as the primary teaching techniques. Finally, at the NJC all
mediations are done with two mediators in a process called "co-mediation."
Conclusion
The process of mediation has been used for thousands of years to resolve
conflicts. In some parts of the world, mediation is considered to be the same as, or
similar to, conciliation. Whatever its name, at its core is a voluntary process used to
help two or more disputants negotiate and settle their differences. The article has
described a basic model of mediation taught to community mediators in Hawaii and
adapted to a wide variety of disputes. The people of Hawaii have made it their own
process.

Tongue Fu
What to Say in Difficult Situations
Top 7 Tongue Fu Tips
By Sam Horn
http://www.womensmedia.com/new/Sam-Horn-what-to-say.shtml
Would you like to know what to say when you don't know what to say? This article
explains how you can think on your feet and communicate more constructively with
colleagues, customers, even kids. This article presents tips designed to help you
respond pro-actively to challenging individuals.
What is Tongue Fu, you ask? "It's how to handle difficult individuals without becoming
one ourselves," says Tongue Fu author and teacher Sam Horn.
Tongue Fu Tip #1.

When people complain, don't explain,
Take the AAA Train. Explaining why something wasn't done when it was supposed to be
done makes people angrier because they feel we're making excuses. Instead, Agree,
Apologize, Act. "You're right, Mrs. Smith, we were supposed to send that brochure to
you last week, and I'm sorry you didn't receive it yet. If I could please have your name
and address again, I'll personally put that brochure in an envelope and make sure it
goes out today." Voila. Complaint over!
Tongue Fu Tip #2:

Has someone accused you of something you didn't do?
Don't defend or deny it. If someone blindsides you with an unfair allegation, "You
women are so emotional!" and you protest with, "We're not emotional!" you've just
proven their point. Instead, put the conversational ball back in their court with, "What
do you mean?" Asking them to explain themselves will cause them to reveal the real
issue and you can address that instead of reacting to their attack. Imagine an upset
client claims, "You don't care about your customers." A hurtful denial of, "That's not true.
We pride ourselves on our quality service" would only serve to turn this into a "Yes we
do - No you don't" debate. Instead ask, "What makes you think that?" The client may
harrumph, "I've left three messages and no one's called back." Aaahh, now you know
what's really bothering her and you can give her the attention she wants and deserves.
Tongue Fu Tip #3:

Stop disagreements with a hand gesture.
No, not that one! If people are arguing and you try to talk over them, what will happen?
They'll talk louder and the voice of reason will get drowned out in the commotion.
Putting your hand up like a policeman will cause them to pause for just a moment,
which gives you a chance to get your verbal foot in the door. Then say these magic
words, "We're here to find solutions, not fault." Remind them that John F. Kennedy said,
"Our task is not to fix the blame for the past, it's to fix the course for the future." If the
conversation starts deteriorating into a gripe session again, make a T with your hands
and call out, "Time out. Calling each other names won't help. Instead, let's focus on
how we can keep this from happening again."
Tongue Fu Tip #4:

Have to give bad news?
Don't use the apathetic words, "There's nothing I can do." A front desk manager at a
hotel in Hawaii asked, "What can we say when people grumble about the rain? There's
nothing we can do about the weather. We're not Mother Nature." I told her, "The words,
'There's nothing I can do' come across as a verbal dead-end. People will feel you're
brushing them off, and they'll get more vehement in an effort to make you care. Use the
words, 'I wish,' 'I hope,' or 'There's something' to let them know you're at least trying to
help them. Say, 'I wish I could bring out the sunshine for you. I know you were looking
forward to some beach time' or 'I hope it clears up soon. In case it doesn't, there's
something I can suggest. Here's a list of rainy-day activities so at least you can make
the most of your visit even if the sun doesn't cooperate.'" In the real world, we can't
always give people what they want. We can at least give them our concern and viable
options.
Tongue Fu Tip #5:

Has someone made a mistake?
If something's gone wrong and we tell people what they should have done, they will
resent us - even if what we're saying is right. Why? People can't undo the past. If
they're being reprimanded for something they can't change, they'll channel their feeling
of helplessness or guilt into antagonism towards us. My mom used to tell me, "We can't
motivate people to do better by making them feel bad." Telling people what they
"should" have done makes them feel bad and doesn't teach them how to do it better.
From now on when people make a mistake, coach what happened with the words "next
time" or "in the future" instead of criticizing what happened with the word "should." Now,
you're shaping their behavior instead of shaming it, and they're learning instead of
losing face.
Tongue Fu Tip #6:

Develop a repertoire of Fun Fu remarks.
Erma Bombeck (bless her soul) said, "If we can laugh at it, we can live with it." Are you
sensitive about something? Perhaps you've put on a few pounds. You have a choice.
You can be hyper-sensitive about this and give people the power to embarrass you, or
you can come up with clever, non-combative comebacks and keep your wit(s) about
you. Want an example? I ran into a very tall man in an airport. The people in front of me
were laughing and pointing at him. I thought, "How rude!" until he got closer and I saw
his t-shirt which said, "No, I'm not a basketball player!" The back of his shirt said, "Are
you a jockey?" This man told me he used to dread going out of the house because
everyone made smart-aleck remarks. He finally decided if he couldn't beat 'em, he
might as well join 'em. "This is nothing," he said with a smile, "I have a drawer full of
these shirts at home. My favorite says 'I'm 6'13" and the weather up here's fine.' Ever
since I started wearing these shirts," he added, "I've had fun with my height instead of
being frustrated by my height." Coming up with just the right remarks can help you
lighten up instead of tighten up.
Tongue Fu Tip #7:

Turn "can't because" into "sure, as soon as."
Imagine a staff member asks, "Can I have my paycheck early? I'm going on a trip this
weekend" and you answer, "No you can't have your paycheck because it hasn't been
approved by payroll." That's the truth, however it's a tactless way of rejecting a request.
The words "can't because" are like a verbal door slamming in people's face. Want good
news? You can often approve requests with the words, "Sure, as soon as" or "Yes, right
after." Re-word your reply to, "Sure you can have your paycheck, as soon as it's
approved by payroll. Why don't we give them a call, explain the circumstances and see
if there's any way they can speed things up." One manager said, "I can't wait to use this
idea at home. My kids see me as a 'big meanie' because they're constantly asking for
permission and I'm always telling them 'no.' Next time they ask if they can go outside
and play with their friends, instead of telling them, 'No you can't, because you haven't
done your homework,' I'm going to say, 'Sure you can, right after you finish your
homework.' Instead of seeing me as the one who's keeping them from what they want,
this makes them responsible for getting what they want. It changes the whole dynamic
of our relationship."
Sam Horn suggests a group of "words to lose" phrases

that should be replaced with "words to use."
WORD TO LOSE WORDS TO USE

But And
Should Next time – or - From now on – or -
In the future
You'll have to If you would ...
You need to Could you please ...
Can't because Sure, as soon as
There is nothing ... I wish ...
There is no way ... I hope ...
With these Tongue Fu tips, we can keep people from becoming difficult in the first place
or at least not add fuel to their verbal fire by using responses that help instead of hurt.
By communicating diplomatically, people have more incentive to respond in kind.
You can hear a Sam Horn's Tongue Fu presentation at
http://www.samhorn.com/audio/

Difficult Conversations
The ‘What Happened’ Conversation
The Feelings Conversation
The Identity Conversation
Make it a learning conversation.

See and acknowledge your own contribution to the
situation.
Avoid
the truth assumption
the “intention invention
the “blame frame
Start with ‘The Third Story’
An Effective Apology contains:
1. A valid acknowledgment of the offense
2. An effective explanation
3. Expressions of remorse, shame, and humility
4. A reparation of some kind
Aaron Lazare

Why Can’t You Shut Up?
Anthony E. Wolf
This book is about confrontations with our closest

relationships:
family, friends, co-workers , spouses, and significant

others.
Guidelines
• Think: Stop talking if there is nothing to be gained

(and lots to be lost).
• Don't repeat yourself. Make your point once (and sit

down / shut up).
• Don't take their bait. Don’t get sidetracked. Ignore it.

"You're just like your father" or "You always say that!"
• Give your advice once and move on. Don't require

them to recognize it as the most brilliant suggestion
ever..

TO IMPROVE YOUR NEGOTIATIONS:
Think in terms of interests
Classify the type of negotiation:
Deal or Dispute
Distributional or Integrative
Expand the pie
Use a planning chart
Investigate the opposing negotiator
Consider both strategy and tactics
Set high goals for yourself
Practice before you negotiate
Determine your BATNA
Ask lots of questions
Separate the people from the problem
Generate alternatives by brainstorming
Frame your proposals as a gain to them
Flinch when you hear a high demand
Protect your facts when necessary
Be willing to make concessions, but only if they do too

RECOMMENDED BOOKS
Getting To Yes, by Roger Fisher, William Ury, & Bruce
Patton
Tongue Fu, by Sam Horn
Difficult Conversations, by Douglas Stone, Bruce Patton,

and Sheila Heen
Getting Past No, by William Ury
The Power of a Positive No, by William Ury
+++++++++++++++++++++++++++++

You Must "Dance"
Phyllis Pollack
This article restates the ideas presented by Scott Van Soye in his 2-page article in ADR Times, Vol. 1 / #
1 (2011), (and has again been edited slightly by John Barkai) called “The Negotiation Dance: Five
Reasons Not to Sit Out.” Many negotiators want to speed up the “dance.” Often, you can’t; if you do try –
you will lose that magical something in the process of “dancing” and the negotiations will fail. Here are
five reasons why the parties must dance!
Negotiating price (or a settlement amount) can be a long and frustrating process, yet research has
shown that the outcome is often predictable. Professor Peter Robinson (co-director of the Strauss
Institute for Dispute Resolution at Pepperdine Law School) says that most agreements are reached at
about the midpoint between the first two reasonable offers.
Doesn’t this mean that we can skip all the bargaining rigmarole, figure out what the most reasonable
midpoint number is, offer that, stick to it as our “bottom line,” and be confident of settlement?
The short answer is an emphatic "No." The following are five reasons why.
1. To get to the midpoint, social pressure is placed on each party to share the burden of conceding.
“Without a pattern of concessions, sometimes called the “negotiation dance”, this mutual pressure is
gone.”
2. It is normal to negotiate; Negotiating is the social norm. Failing to negotiate leaves your counterpart
frustrated, angry that you are being “stubborn” or “unfair,” and doubtful that you are really at your bottom
line.” These feelings can cause your opponent to refuse even the best deal. Consequently, without the
“dance”, even the best deal may not be acceptable.
3. A “take or leave it” approach greatly limits your ability to negotiate, as well as limiting your credibility. If
your first proposal is your bottom line, and if it is not accepted – you must walk away to maintain
credibility. If you say “this is my bottom line” and then change your mind, you lose credibility and seem
weak. In one mediation, five “final offers,” ranging from $5,000 (first offer) to $225,000 (settlement
amount), were presented in four hours. Had the “final offer” tactic been saved until late in the negotiation,
it might have been believed, and the defendant could have settled for far less.
4. The pattern of the dance significantly impacts how much you recover or pay. Studies show that the
first move in a negotiation strongly influences the other party’s estimate of value. By anchoring your first
demand at a higher, but reasonable amount, the agreement ultimately agreed upon will be higher. By
making the first offer, you establish the playing field of expectations. If you start with a reasonable offer,
your counterpart will expect to do better than if you started higher.
5. “Consider the value of high aspirations and optimistic goals.” “Those with high goals routinely do
better than those with more “realistic” ones. Of course, this assumes that the demands are within the
realm of possibility. Ridiculous demands will be ignored. Professor Charles Craver (Prof. Barkai's law
school classmate) recommends determining your reservation point – the price at which you’d rather walk
away than settle – and your target price – the most you can reasonably expect to get. Then do the same
for the other side. Consider the value of similar claims, and your opponent’s resources. Pick an
aggressive, but not outrageous, number with these facts in mind.
In sum, if you refuse to “dance,” you will definitely be at a disadvantage in any negotiation and may well
needlessly anger your opponent even if you think you are acting reasonably. You must “dance” to get the
most out of the negotiation: it is that plain and simple.
Why Women Must Ask (The Right Way):

Negotiation Advice From Stanford's Margaret A. Neale
By Vicki Slavina, May 27, 2013

Few Stanford Graduate School of Business MBA students would argue that Professor
Margaret A. Neale is a powerful woman. At over six feel tall, even my male classmates
would be intimidated to negotiate with her. And it’s not just because she often calls out
students’ “sub-optimal” negotiation strategies in front of the whole class—it’s because
she’s clearly a master negotiator.
Maggie, as her students know her, starts her two-week, highly sought-after Negotiation
seminar by introducing people to the cost of not negotiating—which could be years of
additional work to make the same salary as colleagues who negotiate. Unfortunately,
women suffer the most from this—which is why Maggie spends much of her time
outside of the MBA program, co-directing the Stanford GSB Executive Program for
Women Leaders.
Personally, my most interesting moment in the class came when I was assigned to
negotiate on behalf of constituents and I was able to play the mediator. It was also my
best negotiated outcome of the semester, and that’s no coincidence—as I learned,
women often do best in representative negotiations.
I recently sat down with Maggie in her Stanford office, me on a low chair in front of her
packed desk, her towering over me on a blue medicine ball. Read on for the scoop on
why women don’t ask—and what we can do to change that.
Why should women negotiate?
Linda Babcock did a study for her book Women Don’t Ask where she found that there
was a 7.6% difference between the salaries that women MBAs were getting and those
that men were getting. A lot had been written on the comparable work issue already and
much of the blame for the difference had been placed on organizations—basically
institutional sexism.
Linda doesn’t say that doesn’t happen, but she does ask if there is something more.
One of the questions she asked people is, “When you got your offer, did you attempt to
negotiate?” She found that about 7% of women attempted to negotiate, while 57% of
men did. Of those people who negotiated, they were able to increase their salary by
over 7%. So, you can see that if women and men negotiated in similar proportions, that
7.6% difference would be cut dramatically.

One of the things I ask my students is: If you think of a $100,000 salary, and one
person negotiates and gets $107,000, and the other doesn’t—what’s the cost of that? In
a simple-minded way, some people say, "Is $7,000 really worth risking my reputation
over?” And I agree, $7,000 may not be worth your reputation.
But that’s not the correct analysis, because that $7,000 is compounded. If you and your
counterpart who negotiated are treated identically by the company—you are given the
same raises and promotions—35 years later, you will have to work eight more years to
be as wealthy as your counterpart at retirement. Now, the question is: $7,000 may not
be worth the risk, but how about eight years of your life?
When women do attempt to negotiate, what mistakes

do they often make?
They don’t prepare. Oftentimes you’ll see that even when women say “I should
negotiate,” they don’t do a good job preparing by knowing how much more they want
and why. They don’t know how to tell their counterparty persuasively why they should
get what they want.
The other problem is that women have systematically lower expectations. The problem
with having systematically lower expectations is that you get systematically lower
outcomes, because expectations drive behavior. So, they get less not because they are
women, but because their expectations are lower.
There was a study done at Harvard Business School where they demonstrated, much
like Linda Babcock’s work did, that male MBAs get more. But when they equated the
knowledge that women had about the going salaries for these jobs with the men’s
knowledge, the difference disappeared. So when you equate expectations,
performance is equivalent.
How do women need to think about negotiating

differently than men?
Women are concerned about the reputational risks of negotiating, and they have cause
to be concerned. If I negotiate for an increase in my salary, and I have a male boss, the
research suggests that I will be penalized in a way that my male counterparts will not
be. If I have a female boss, she’s going to penalize both males and females, so it’s not
like I get any benefit for working with a woman.
One thing I would encourage women to do is to have a communal motivation for asking
for more. If I’m a man and I’m negotiating a salary, I can talk about my competencies.
What women need to do is yolk their competencies with a communal concern.
When I interviewed at Stanford, I obviously knew this research, so I did a lot of

research to frame how my package of resources could allow me to fulfill the needs that
Stanford has. The whole theme was, “What can I do for Stanford and what can I do to
help the Dean solve the problems that he has?” This communal orientation—it’s not
about me, but it’s about what I can do for you—mitigates the negative reputational
affects for women.
Does this communal focus also improve women’s

expectations?
Women are not as good negotiating for themselves as men are, mostly because of
different expectations. But women outperform men in representational negotiations—
that is, negotiating for someone else. As a woman, it is unacceptable for me to be
greedy on my own, but it’s completely acceptable for me to negotiate for someone else,
because that is a caretaking thing, a communal thing. I’ve certainly had women CEOs
of moderate-size to large organizations tell me they have no problem negotiating on
behalf of their company. But asking the Board of Directors for a raise? That is hard.
So the question is: How can you, in your own mind, frame your negotiations as
representative?
What are your top recommendations for negotiating a

job offer?
Package, package, package: If you go issue by issue, you make it adversarial. And
part of the frame you want to bring is: "Here are the recourses I need to be effective."
Prepare: Use your network to get insights. Before I came to Stanford, I spent a lot of
time talking to friends of friends to understand what kind of issues were easier to get at
Stanford and which were harder in order to frame my argument.
You are as good as your other options: My first job as an academic, I didn’t negotiate
because it was the only reasonable research position I was offered. But when I was
coming to Stanford, I was happy to negotiate. I had a really great job at Kellogg, I was

really happy living in Chicago, everything was great. California was expensive and
weird, and I’d never lived on the West Coast. But it had this caché and there were
some really interesting people doing research here, so I was intrigued. So I negotiated
and—let me tell you—they were surprised!
The more options you have, the more in demand you are going to be. It’s just like
dating: The more competition there is for your attention, the more valuable people think
you are.
Do you have any other recommendations for The

Daily Muse readers?
Yes—the intro to my Negotiation class: Got a problem? Try to negotiate.
People, especially women, need to broaden their definition of what it means to

negotiate. Sellers don’t come to you to negotiate and say, “You’re paying too much”—
it’s your job to think: “Is there a creative way for me to engage my counterparty in a way
that I am better off and he or she is at least as well off?”
Think about four steps in negotiations:

 Assess: Is this a situation where I can influence the outcome?
 Plan: How might I influence it? What do I want to achieve? What is important to
them? Why are they making this decision or creating this problem?
 Ask: Here is what I need to help solve this problem that makes me better off and at
least keeps my counterparty whole.
 Package the proposal: Take the information you have and your counterparty has to
find a better solution. No one has perfect information. For women, do that with a
communal view.
And finally, don’t be afraid of asking!

The Last Gap in Negotiations.
Why is it Important? How can it be Crossed?
Professor John H Wade, Bond University, Australia
What is the last gap in a negotiation? It is the last step necessary to reach an agreement
between the negotiating parties. Often that last gap or last increment emerges after long and
exhausting negotiations which have led to agreement on all issues but one. For example, that one issue
may be - Who gets the grandfather clock? How should the last 10% of the pool of assets be
divided? How should the outstanding credit card debt be paid? How to cross the difference of $ 600
or $ 1 million in the parties' "final" offers?
Most lawyers and business people can relate horror stories with humour and/or anguish about clients
becoming stuck on the last issue of a lengthy negotiation. Some lawyers can tell how they themselves
have offered to write a cheque to cover the last gap in order to help the disputants end the drawn out
negotiations and almost invariably the disputants refuse the offer "as a matter of principle".
The Importance of the Last Gap

Why does the last increment or last issue assume such importance and so often anecdotally provide
a stumbling block to a negotiated settlement? There are a number of possible explanations:
* The Last Dance - final loss of the conflict or the relationship.
* Unfinished Emotional Business.
* The last straw - "I have given up so much already".
* Sense of having been Tricked.
* Skilled helpers attempt to prove "worth".
* Recriminations for Lost Time and Money.
* Latent request for a symbolic apology.
The Last Dance

Negotiations have often been compared to a dance, where one or both parties circle
one another apparently reluctant to end the process. Particularly in family, succession and
employment disputes, a settlement represents the final loss of the relationship and is therefore often
avoided.
The avoider may need to be challenged privately by a trusted adviser about his/her apparent need to
avoid that final loss of the relationship. Some patience and new strategies are needed as the avoider
weaves and ducks around the resolution of the last issue with a series of "oh but...." statements.
The most clinging form of the last dance has been described by Isolina Ricci (Ricci Mum's House, Dad's
House (1980)) as "negative intimacy.”. This occurs where one or both parties are finding meaning to life
by being a martyr, or by being in constant conflict. A settlement represents loss of meaning.
Thus the last gap will never be crossed but will be preserved. Even if the other party
concedes the last gap, the "negatively intimate" negotiator will create a new last gap -
known as an "add on."
For example, just as agreement is apparently reached: - "There's
something else I want to raise............................"

- "There's one more thing that has to be done - I want an apology".
- "Of course, before I sign anything I want all the photograph albums delivered to me".
Unfinished Emotional Business

The last gap may represent a cry by one or both parties that there are some unfinished emotional issues
between the disputants. Commercial reality or common sense "does not prevail for good reasons". We
cannot allow this dispute to be nominally "finished" when one major issue has not even been discussed,
let alone resolved - namely my sense of anger, devastation, guilt or powerlessness. I will hang
on to these negotiations and to your presence in this room until my feelings are acknowledged,
expressed or healed, or diminished to a tolerable level of pain".
Thus once again, jamming on the last gap may have nothing to do with the substance of the last gap.
Rather it may be a cry for help.
If this is a correctly hypothesized diagnosis in a particular case it represents a challenge to skilled
helpers (lawyers, counsellors or mediators) to develop a number of strategies to respond to the cry.
These strategies need to extend beyond the ubiquitous platitude "perhaps you need to work
through this with the help of a counsellor".
The last straw - "I have given up so much already".

The dominant method of negotiation in Western cultures appears to be positional bargaining. Each
party makes an extreme claim and by gradual increments moves towards a resolution point somewhere
between those extremes. Repeat players such as corporations are experienced in playing this game.
However, one-off or less experienced disputants tend to go through disappointment and anger as they
see their original claim whittled away by one concession after another. This is particularly so where
they believe that their original offer was reasonable, or at least not unrealistic.
At the end of several rounds of mutual concessions, both ( now angry) disputants may
have a strong sense that each has conceded so much already - so much has already
been "lost" - without losing yet again on the last issue. Accordingly, each disappointed disputant digs in
and insists that the other concede on the last issue. "I want you to give something today as I have
already gone way past my bottom line. Be reasonable!" - each disputant echoes to the other.
Some disputants may feel intensely that this last impasse is the last straw - they have been
steamrolled all day and are finally putting up a stop sign to preserve some sense of integrity. A
dramatic walkout may also be staged or threatened.
The walkout relieves the pressure of the negotiation room, avoids the last concession, demonstrates to all
how intensive the pain is, and may inflict some pain on the other side for his/her "unreasonableness".
Professional helpers should be able to anticipate the walkout and normally have a variety of
strategies ready to prevent or delay its occurrence. This is because a walkout enables each side
to characterize the other as "unreasonable" - one for unreasonably "causing" the termination of the
meeting, the other for immaturely exiting. Each party is stereotyped and a new cause for a
relationship conflict is
founded . (See the five types of conflict identified by C. Moore The Mediation Process (1986). )
Additionally, after a walkout it is difficult to muster enthusiasm, cash and timetables for another face
-to-face meeting.
Sense of having been Tricked

Some negotiators sense that they have been tricked when the negotiations reach the last gap, and
someone predictably suggests "split the difference". This is because they believe that their first offer was
"reasonable", whereas the other parties' first offer was wildly exaggerated. The standard process of
incremental concessions has left the range of offers biased towards the "exaggerated" opening offer.
The person who perceives that they opened reasonably will often be fuming for being "punished" for
his/her reasonable behaviour. This pattern of behaviour of course encourages some experienced
negotiators to avoid opening with reasonable offers.
Even more experienced negotiations/mediators will tend to discuss how negotiations should open - firm
reasonable or soft extreme - before the process commences.

Skilled Helpers attempt to prove "worth".
The last five, ten, twenty or fifty thousand dollar gap is sometimes a sticking point as the lawyers want
to "win" that gap to both establish their negotiation skills, and to pay their own fees. A client will face triple
disappointment if they "lose" their expected outcome, "lose" the last gap, and then have to pay fees of
skilled helpers (such as lawyers and accountants) from their diminished share. Lawyers understand
the marketing need to justify their fees, and to support disenchanted clients who will be their main
source of publicity for future clients. Therefore some lawyers may feel the need to negotiate long and
aggressively on the last gap.
Recriminations for Lost Time and Money

Reaching the last gap sometimes brings home a depressing reality to one or all the negotiating parties.
They are about to settle for a deal which was offered and rejected one or two years previously. Now they
are about to settle for the same figures with nothing to show for one or two years of tension, absences from
work, uncertainty and thousands of dollars of expenditure on legal and other experts' fees. This pattern
reflects the negotiation adages that "the right offer at the wrong time is the wrong offer"; the
negotiation dance takes time and money; disputes settle when they are ready to settle - not before.
However this loss of time and money will result in some angry statements particularly by negotiators who
are not repeat players:
* "We could have settled for these arrangements two years ago if you had only
been less greedy"
* (To the lawyer) "I've spent another x thousand dollars on you - and what do I
have to show for it? Nothing!"
* "I was willing to settle for that amount one year ago - but now you'll have to pay
all my legal expenses"
* "Two years of pain and expense - for what? - only to make the lawyers richer".
* (To the lawyer) "I wish you had pushed me to agree two years ago when these
similar figures were on the table".
* (To the lawyer) "Your initial advice two years ago suggested that I'd get much
more than this paltry offer. And now you seem to be pushing me to accept".
This is a familiar litany of recrimination for lost opportunity against self, the other party, and the expert
advisers. It can make navigating the last gap a tense passage of blame and defence both within and
across negotiating teams.
Some lawyers attempt to deflect or anticipate client blame for their behaviour by producing old written
letters of advice to settle; by negotiating aggressively to win the last gap; by blaming the old
misdiagnoses on unknown and subsequently emerging facts; by reducing legal fees in the light of the
"disappointing outcome"; or by recommending an umpire's decision so that the umpire, and not the
lawyers can be blamed for the outcome.
Latent Request for a Symbolic Apology

In family disputes, the return of a particular "minor" chattel sometimes becomes a cause celebre not
because the item in itself is important to either person. Rather it represents one form of "unfinished
emotional business". This is a sense of hurt from a past particular or series of events which is sought to
be remedied by an apology. As a verbal apology is seen as unlikely, one party demands a symbolic
apology by insisting upon the return to him/her of a bicycle, painting, hallstand, necklace or set of books.
The possessor of the item will usually be reluctant to effect the transfer so long as this might be
interpreted as an apology - as (s)he is convinced that apologies should be coming the other way on the
"correct" interpretation of history and righteousness.

Can the Last Gap be Avoided?
Are there any strategies whereby the last gap can be avoided in negotiations - or is it inevitable? This is
certainly a worthwhile topic for empirical research. How often is there a clear impasse over the last gap?
What are the variable factors which can be measured when the last gap is absent?
It may be that almost every negotiation necessarily involves a measure of distributive and positional
bargaining, and therefore a measure of pain and pause.
Nevertheless, a number of preventative strategies may help both parties to prepare for the last gap so
that it creates less of an impasse.
Education - Talk and Diagrams

A skilled helper (lawyer, counsellor, negotiator, mediator) can educate a client concerning predictable
patterns of negotiation and impasse by:
* giving out literature or videos on negotiation
* repetitively giving educational lecturettes
* drawing negotiation diagrams
* listing common ways to cross the last gap so that the client can consider these
in advance.
This education process may cognitively help the one shot client to:
* reduce the sense of panic or anger when the last gap is reached
* feel some control over the stressful and mysterious negotiation process.
However, the obvious should be stated-intellectual assent by a client to a series of "educational" verbal
propositions from the mouth of a skilled helper may be a totally ineffective learning experience. The
humbling adage is that family law clients only hear every fifth word spoken by their lawyers.
"Keep something in reserve"

Some lawyers appear to coach clients to "keep something in reserve" in preparation for the
prophesied road block at the last gap. On standard negotiation principles, the "something" should be of
high value to the offeree, but of lower value to the offeror. Identifying these extras requires a problem
solving search for the "interests, needs and goals" of the other side. For example, the offers held in
reserve in family disputes might be:
* a promise to keep a parent fully informed of all the child's activities and school
reports.
* a promise to use best endeavours to ensure that a child phones regularly.
* an undertaking to pay private school fees or medical and hospital insurance.
* a request to babysit a child during a holiday period.
* an undertaking to publicize and promote a spouse's business, dispute the martial
breakdown.
Maximalist opening offer
Some lawyers routinely advise clients to "open high, as it is easy to give up something; but very
difficult to take back". This homespun wisdom supposedly prepares the client to make concessions
around the last gap, as (s)he knows (at least in theory) that the initial claim has been overstated in value.
This rule of thumb is a two edged sword. It may fulfill its aim, or may in fact cause the very problem of
deadlock it is aiming to predict and avoid. For example: First, used against inexperienced negotiators or
lawyers, or against a one-off party, it may cause considerable anger for being "unreasonable" or "out of
the range". It fulfils the prophecy that he offeror is "unreasonable", "hysterical" or "greedy" and
negotiations are terminated.
A predictable pattern of stand-off, bluff, harassment, threat to use an umpire, followed by eventual

incremental concessions is resumed.
Secondly, used against an experienced negotiator or client, the maximalist claim is usually readily
identified, named and ignored. Thereby the unexperienced offeror lawyer or client may not have the
skills to withdraw without loss of face.
In the jargon of negotiators, the unexperienced offeror made the opening offer "high" but not "soft". (S)he
failed to attach sufficient understandable code words to the high opening.
Thirdly, used against an experienced lawyer or client, the maximalist claim may result in a maximalist
counter-claim. The following months or years of incremental concessions will leave both parties with
an even heightened tension over crossing the last gap.
Problem-solving Opening Approach

Another increasingly popular (but far from infallible) preventative strategy, is to open communications in a
problems solving style. For example, "My client has the following five goals "; "My client has the
following three concerns "; "This is our understanding of a chronology of facts"; "We are willing to
discuss possible options or solutions but would first like you to set our your client's general or specific
concerns and goals"; "Can you provide us with the following information and documents so that
we can properly advise our client"; "Please advise what information and documents you require".
These classic problem solving openings are designed to delay stating positions, maximize
communication; reduce suspicion; and put as many chips of value on the negotiating table as possible. In
the jargon of the industry, it is worthwhile spending time and skill to enlarge the pie so that packaged or
linked bargaining can then take place. The last gap is delayed by keeping all issues unresolved by
face saving conditional and linked offers at different levels of specificity. "Bill, would you be prepared to
move towards Jane's valuation figures if Jane moved towards a lower percentage?" "Jane, what if you
received the business immediately, would you be prepared to give Bill some of the chattels he has
requested?"
It has been one of the myths of the dispute resolution industry that this helpful
problem solving approach will dispense with positional bargaining and the last gap.
This is clearly not correct. Even a packaged and linked multi issue offer eventually becomes specific
in its numbers and terms, an at that point there will be a last gap. "That proposition sounds interesting,
but I'm not prepared to give you all the chattels on your list - I want the painting"; "We are getting closer,
but I can never drop my percentage below 55%". The mixed nature of all negotiations between
competitive positional and cooperative problem solving is well established.
How to Cross the Last Gap in Negotiations
Apart from anticipating the last gap, what strategies are available to cross this hurdle in negotiations or
mediation?
One aspect of a mediator's role is to be an expert in the dynamics of negotiation and to educate the
disputants concerning these dynamics. Parties can then have some confidence, even though they
may feel in the wilderness, that there are well trodden paths which they have some power to choose
between. On some classic model of mediation, this education is not necessarily advice-giving. Rather
the mediator or negotiator can give information concerning the range of options which have emerged in
the strategies of negotiation. (A mediator or negotiator can give this information before or after the last
gap has been reached in the negotiation). What follows is a list of options on how to cross the last gap.
Some of these can often be helpfully written on a whiteboard. Each disputant may be advised "You
will need to choose one of these methods if you want to reach a settlement tonight. I am going to ask
you each in turn which of these methods you (i) would at least consider as a possibility; or (ii) prefer; or
(iii) would like to avoid"
This ritual of visualizing options in dispassionate words on a whiteboard may assist the disputants:
* to resume a style of joint problem solving.
* to withdraw gracefully from a strongly stated position - "I will never settle
unless I get that car".
* to realize that impasse on the last increment is a normal stage in negotiations.
* to realize that there are many solutions and there still is opportunity to negotiate
about the most palatable of these.
* assist the parties to avoid a dramatic and premature walkout before all the
options have been considered.
Options for crossing the last gap in negotiations

The seventeen methods are as follows:
(1) Tal k - Try to c onvinc e
(2) Spl i t D i fference
(3) Expanding the pie by subdividing the last gap
(4) Expanding the pie by an add-on offer - "What if I moved on...............?"
(5) Refer to a third party umpire
(6) Chance - fl ip coin
(7) Chance - Draw gradations from a hat
(8) Transfer the last gap to a third party
(9) Conditional offers and placating incremental fears - "What if I could convince client to...? How
would you respond?"
(10) Pause - and speak to significant others
(11) Pause - and schedule time for a specific offer
(12) Defer division of last gap; divide rest
(13) Sell last item at auction; split proceeds
(14) Pick-a-pile; you cut, I choose
(15) Skilled helper has a face -saving tantrum
(16) File a (further) court application – pursue pain and hope.
(17) Double blind offers
(1) Talk - Try to Convince
A common response at the last one million dollars; or $10,000; or at last set of paintings; or last car,
is for one or both disputants to talk - to rehash old arguments in an attempt to convince the other party to
give in. These arguments take various forms:
* "I have given up so much in these negotiations; now it's your turn".
* A lengthy filibuster re-iterating all the merits of the speaker's claims, and the
weaknesses of the agitated or glassy-eyed "listener".
* An angry speech about how the listener's first offer was outrageous, so (s)he
should make the last incremental concession "to be fair".
* A lengthy speech about the cost of litigation, the costs already incurred and the
likelihood of settlement at the door of the court.
* A detailed historical version of the concessions made to date in the negotiation
leading to the predictable conclusion that it is the listener's turn to be reasonable and make the last
concession.
* A short but angry speech with express or implied threats about walking out,
stonewalling, scorched earth, subpoenaing relatives or business associates, or advising the
Commissioner of Taxation about unpaid tax of some kind.

* A combination of some or all of these speeches.
Anecdotally, these speeches rarely appear to be directly successful in crossing the last gap. The listeners
may become inflamed to hear such a one-sided presentation (yet again) so late in the day, and deliver
a counter speech or the speaker may back himself/herself into a positional corner. One
mediator/facilitator strategy is to interrupt the flow of words with an attempted educational comment, and
redirect the disputants to the remaining list of options on the board. "I don't think that these arguments
are going to convince either of you; you've both hear them all before; the last gap is never crossed by
logical argument; I'm going to ask you each in turn which one of the other options on the board you could
live with".
Nevertheless, some degree of managed speech making at the last gap may serve latent
functions of catharsis, boredom, the last dagger, further emotional pain, or attempted
justification of perceived role and fees of a skilled helper, or the farewell address. A managed last
speech may be important given the complex psychological functions which the last gap appears to
serve .
(2) Split Difference

This method is commonly suggested where the last gap consists of money or other divisible items - such
as time with a child. It has the merits of simplicity, that both parties "lose" equally and that it is culturally
commonplace.
However, given the complex psychological dynamics surrounding the last gap, "splitting the
difference" may be seen as too quick, part of an orchestrated plan of attack, or involving another
painful "loss".
(3) Expanding the pie by sub-dividing the last gap

The last increment can sometimes be divided in ways apart from an equal split by dividing the time of
use or time of payment. For example,
* the last $10,000 can be paid over time in installments
* the last $100,000 can be paid at a later date with an interest component
* a painting can be used for alternative months by different parties, with one or
the other paying shipping and insurance.
* both parents can meet a child on his/her birthday at a common venue, rather
than each having exclusive time with the child.
(4) Expanding the pie by an add-on offer

One party can attempt to overcome an impasse on the last increment by re-opening a "decided" issue, or
adding another issue to the negotiating table. In these ways, there is an attempt to prevent the "last"
issue from being the last.
For example,
* "I would be willing to give up my lounge room couch if you return the
children's bikes to my house".
* "If that last $10,000 is paid to me, I would be willing to redirect all old
customers to you".
* "We have already agreed that you will occupy the house for 3 years, but I'm
willing to reconsider that time period if I can have that painting".
Obviously, it is not always easy to re-open or to discover extra value to place on the bargaining table. One
of the clear benefits of questioning and listening skills is that a negotiator can develop ideas on the needs
concerns and interests of the other disputant so that extra value can be put on the table. Some negotiators
begin bargaining with a positional style. When on impasse is reached, they switch (or have a fellow
negotiator switch) to an interest based problem solving approach.
(5) Refer to a Third Party Umpire

The impasse of the last item can be "resolved" by:
* agreeing to refer the whole dispute to an arbitrator or to a judge
* agreeing to refer just the issue of crossing the last gap to an arbitrator. A
respected expert can be paid for two hours of his/her time to come to a binding oral or written
decision only on the last $20,000, car, Christmas Day or week of the school holidays.
In mediation, the disputants may request that a trusted mediator make a recommendation or
a binding decision on how the impasse should be resolved. Most mediators respond to such requests
with reluctance and make speeches about neutrality. However, occasionally the parties manage to
persuade the mediator to accept one or both of those roles.
In passing it should be mentioned that judging and arbitrating have many different sub-categories
which can be set out for disputants to consider. These include baseball arbitration (both parties submit a
figure to the arbitrator who can only choose one of the submitted figures); night baseball arbitration (both
parties submit secret and sealed offer; the arbitrator makes a decision and opens the sealed offers; the
offer closest to the arbitrator's decision is binding); high-low arbitration (parties agreed to the range of
outcomes; the arbitrator can only decide within that range); “night” high-low arbitration (each party
submits a sealed high-low range of outcomes; the arbitrator or valuer makes a decision which is only
binding if the decision falls within the overlap of the ranges when these are disclosed; scope
arbitration (the arbitrator is only authorized to decide upon a range of outcomes divided by say 15%;
parties agree to settle within that range); on-the-papers arbitration (a cheap and quick decision making
process where there are no oral presentations); early neutral evaluation (an expert gives a non-binding
assessment of the likely court outcome of a dispute).
(6) Chance - flip-a-coin

Chance provides an important option for deciding who gets the last gap. This is because flipping a
coin:
* is cheap and fast
* involves equal chance of winning or loosing
* avoids loss of face by being "beaten" by other more personal strategies
* is sometimes culturally acceptable in a gambling society
* provides a stark visual metaphor of "going to court" and also reflect the
educational conversations of many lawyers and clients
* is so abhorrent to some risk averse disputants that they return to the remaining
list of options with enthusiasm!
(7) Chance - Draw from a range of Solutions

This is an alternative version of chance which avoids the all-or-nothing result of flipping a coin. The
disputants care that several solutions will be written out on slips of paper, placed in a hat, and the one
drawn out will prevail.
For example, if the last increment is $20,000 then ten slips of paper can be placed in a
hat beginning with "$2000" and ending with "$20,000" with gaps of $2,000" written on each slip of
paper. The drawer receives whatever number is on the drawn piece of paper; the residue of the last gap
goes to the other disputant. Of course this method can be extended to a range of more complicated
alternative solutions.
(8) Transfer the last gap to a Third Party

This option involves both parties agreeing to transfer the last gap to a child, a charity, to pay the fees of
skilled helpers such as lawyers or mediators, or to pay for renovating a house or business before a
sale.
Thus for example, last increments from the division of a pool of assets in a matrimonial or
deceased estate have been transferred:
* to a trust fund to pay for future child support or private school fees.
* in the form of an antique car to a husband on the condition that he bequeath it
to his children.
* to pay a mediator's fees.
Such transfers to third parties may have the clear benefits of mutually avoiding a "loss", and of
wedding a third party to the solution chosen.
(9) Conditional offers and placating the incremental fear

Where a pattern of incremental bargaining has been established, each disputant will usually be
concerned about the consequences of initiating any offer across the last gap. Why? Because any offer
is likely to be whittled away by an incremental counter offer. For example, if the last gap between A and
B is $20,000, and A offers to split the difference ($10,000 to A) how is B likely to respond? "B is likely to
respond, split the difference again - only $5,000 to A". Thus there is a reluctance to make the first move,
and the impasse remains intact.
Accordingly, some negotiators make exploratory conditional offers in an attempt to placate the fear of
incremental counter-offers. This works best if there are at least two negotiators (e.g. lawyer and client) on
each negotiating team.
Lawyer: "What if I could persuade my client to make a split-the-difference
offer, would you guarantee that you wouldn't try to cut down her offer?"
Opposing
Disputant: "What do you mean?"
Lawyer: "Well I'm not willing to put the effort persuading my client against
her wishes to modify her position if you're going to try to cut her offer in half. She will
then feel betrayed. I'm not willing to put in the work to attempt to persuade her unless I
know what your response will be. And there are no guarantees I can persuade her".
Opposing
Disputant: "Let me talk to my lawyer about this in private for a moment. We'll
be right back".
Obviously, this option can be manipulated by a negotiator attempting to discover the other side's
willingness to settle for a hypothesized offer. However, the offeree's response is also clearly conditional
("if your client makes that offer....") and can be withdrawn readily. Moreover, raising any suspicion of
manipulation will usually be counter-productive at such a late stage of nearly successful negotiations.
(10) Pause - and speak to significant others

The intensity of a negotiation or mediation session means that it is easy to become weary, to lose
perspective and to make "a mountain out of a molehill". Additionally, some people are cautious and are
accustomed to reflecting upon options available before making a commitment.
Accordingly, it is a helpful strategy to suggest a break to consider one or more written options, with a clear
appointment to resume negotiations, and with encouragement for each disputant to speak to specified
trusted third parties. Where a mediator is being used, it is often helpful for all disputants to make contact
during the break to clarify, brainstorm and hypothesize on negotiation dynamics (e.g. "What will be the
likely response if I make this offer ?"). Additionally, during the break, the friend (often a trusted lawyer)
may be able to re-establish team perspective that any “loss” of the last gap is counterbalanced by the
“gains” of the proposed settlement.

(11) Pause - and schedule time for a specific offer
As a variation on the previous procedure, the parties can actually draft a precise or general form of offer
before the break is taken. This may for example represent a mediator's recommendation of "splitting
the difference" which is too difficult to swallow during the negotiations.
A time and place is then agreed upon for one party to contact the other and make the offer as drafted
(e.g. phone on Wednesday night between 6-8 pm). Both agree not to haggle, but either to accept or reject
the ritual pre-planned offer and to return to the negotiation/mediation table at a specified time with the
result.
This procedure gives a concrete proposal, reduces the fear of incremental haggling during the break,
ritualizes conflicted conversations, provides a deadline, and allows the parties to return to the
negotiation table knowing what has been decided.
(12) Defer Division of the last gap; divide the rest

Where parties are in dispute over a pool of assets, it is possible for a portion to be divided as agreed,
and for the last gap to be set aside for division at some later time. For example, a wife could take 50%; a
husband 40% and the contested gap of 10% be invested in a joint account until the parties are "ready"
emotionally or otherwise to deal with that 10%.
The writer has been told of one case where the last contested chattel was the matrimonial bed.
The parties chose to divide everything else but to place the bed into indefinite storage until a decision could
be made.
(13) Sell the last item at an auction; split the proceeds

This option involves an agreement to sell the last contested item(s) at a without reserve auction,
usually with all parties free to bid. The most determined bidder "wins" the item and the net proceeds of
the auction are then divided in portions agreed to beforehand.
(14) Pick-a-pile
Where the last gap consists of a number of items such as "all the furniture"; "all the stamp collection";
"all the paintings", then the parties can be offered the "pick-a-pile" option, which is well known to family
lawyers.
One party agrees to divide the chattels into two lists of approximately equal value and
submit these lists to the other party by a deadline. The other party then has a specified
time in which to choose one list as his/her share .
Like dispute resolution by chance, this pick-a-pile option is so filled with risk and tension that some
disputants quickly reject it and return to the list of remaining
options with some relief.
(15) Skilled helper has a face -saving tantrum

This option is rarely chosen by the disputants. However, some parties comment confidentially during
or after a mediation to a mediator - "I wish you would apply more pressure to us both; we are stuck"
Accordingly, when the last gap persists, some mediators try this option from their box of tools. For
example, with varying degrees of simulated anger, the mediator comments: "I cannot believe it.
You have both sat here for three hours and patiently and successfully negotiated through four issues.
Now you're about to throw it all away on this miserable bunch of paintings. You both really disappoint
me. I'm not going to let you out of here until you both do the right thing and etc. etc."
This option may cause the mediator to lose reputation and two clients, or may enable both parties to
avoid any loss of face by making the last concession. They can blame the mediator for "forcing" the last
concession (and rescuing them both from their painted-in corners).
This dramatic option may be particularly successful if the mediator has gained the respect and trust of
all parties (both lawyers and disputants) over a period of time.
(16) File a Court Application – Pursue Pain and Hope

Sometimes, the last gap is too difficult to cross amidst the sense of loss arising from a day of
concessions. Accordingly, the mediator or one of the negotiators delivers a mixed message of pain and
hope “I believe that this dispute will settle; you have made progress today; in my opinion, you are not
diagnostically in the 1-3% of disputes which need a judicial decision; however you both may need to
suffer more pain and expense of filing (further) court applications, open offers, and paying your
lawyers; could the lawyers now agree to a time to talk over the phone in say 7 days time etc.” (Competent
negotiators/mediators always organize face-saving methods to re-open negotiations.)
Various versions of this pain and hope speech have sometimes led to awkward silences, and then
positive responses to the question “Would you like to take a short break, then try for another 15 minutes
to see if this can be concluded today?”
(17) Double Blind Offers

This method has been used in a number of computer based negotiation programs. Each disputant
agrees in writing to make one or more confidential offers to a mediator (or to a computer), on the
condition that if the offers are “close” (“close” being agreed upon as a percentage), then the mediator
(or computer program) will split the difference and both will be bound. For example, the parties may be
stuck at offers of $300,000 and $200,000 with a gap of $100,000 between them. They can agree to each
make pairs of confidential offers; and that there will be no agreement unless and until one
confidential offer is say at least 75% of the other. Thus if each confidentially move $10,000 and offer
$290,000 and $210,000, then there will be no automatic splitting the difference, as 21/29 = 72%.
However, if each agrees to another round of confidential offers, and one moves $5,000, and the other
moves $10,000, then there is a settlement as $215,000/$280,000 = 77%. Splitting the difference
between $280,000 and $215,000 means that the payout-figure is $247,500.

Negotiation & ADR Video Clips
Neale, Ury, and other video and audio clips
Compiled by John Barkai – University of Hawaii School of Law
Getting Past NO by William Ury – 2 hr 10 min (audio book)

https://www.youtube.com/watch?v=hT1wlTcWMNw
Say NO and Still Get To YES (Power of a Positive No) William Ury
The Power of a Positive No - William Ury – 4 min
https://www.youtube.com/watch?v=CDP2Ky_ypVo
Conflict Negotiation by William Ury (co-author of Getting To Yes) TED Talk, 19 min
The Walk from No to Yes – William Ury – TED Talk 19 min
http://www.ted.com/talks/william_ury/transcript - transcript
https://www.youtube.com/watch?v=Hc6yi_FtoNo - video - 19 min (150K views)
https://www.youtube.com/watch?v=6xCkhV7zhuw -46K views
http://www.ted.com/talks/william_ury
– same video, alternative link – 1 mil views
Margaret Neale: Myths and truths of negotiation

http://fora.tv/2007/09/26/Margaret_Neale_Myths_and_Truths_About_Negotiation
Negotiate This - Herb Cohen – 9 min

https://www.youtube.com/watch?v=Kb-s2qTQa4M
Margaret Neale: Winner's Don't take all

http://sic.conversationsnetwork.org/shows/detail3206.html#
Margaret Neale: Negotiation: Getting What You Want – 24 min

http://www.youtube.com/watch?v=MXFpOWDAhvM
http://ed.ted.com/on/p98GXdp4 – this version has a quiz – GTY lecture links
Resource page: http://gender.stanford.edu/negotiation
Bargaining with the Devil When to Negotiate, When to Fight

Robert Mnookin
http://www.youtube.com/watch?v=BMC-FxqPDWU 70 min
How to Negotiate Your Job Offer - Prof. Deepak Malhotra – 64 min

Prof. Deepak Malhotra offers 15 pieces of negotiation advice, followed by Q&A, in an
informal session for students at the Harvard Business School
http://www.youtube.com/watch?v=km2Hd_xgo9Q
- highest rated salary negotiation video on YouTube
Salary Negotiation: Do's and Don'ts! 7m Mary Abbajay

http://www.youtube.com/watch?v=1sNR1OWE5Mo
– second highest rated salary negotiation video on YouTube – and the shortest one. A
good one to watch.

"But First you Have to Ask: Costs and Benefits of Negotiations in a Gendered World"
Women's Leadership Forum- Margaret Neale - 44 min
http://www.youtube.com/watch?v=UZ5Agabjn8w
Negotiation Skills Top 10 Tips – Alan McCarthy - 11 min

http://www.youtube.com/watch?v=oy0MD2nsZVs
Secrets of Successful Negotiating For Women – Wendy Keller – 3 min

https://www.youtube.com/watch?v=Kb-s2qTQa4M
How to sell a car from the movie “Suckers.” 10 min

http://www.youtube.com/watch?v=n2wLlrfU89E
The Power of Apology in Mediation, Lou Chang, 64 min

https://www.youtube.com/watch?v=-_LaiwnNNoc
2-min Example of Online Mediation with PC Mac and Mobile Devices - Homeowner
Contractor Dispute
https://www.youtube.com/watch?v=Xlx5JMk4spM
"Online Mediation Explained in 3 Minutes" - Giuseppe Leone

https://www.youtube.com/watch?v=xAW4YwtChjg
Mark Walters
Instead of saying, “I’ll give you $x,” say “Would you take $x?” – you haven’t committed
to $x. (You can still go down.”
“Is that the best you can do?” – try different word emphasis.
From the movie “The Negotiator”

Never Say “No” to a hostage taker. 3min
https://www.youtube.com/watch?v=GtARiQO8ljE
The eyes can’t lie – reading deception – NLP technique 2 min

https://www.youtube.com/watch?v=Q0xqrvefO7Q
The Fifth Element – Negotiation – 2 min

https://www.youtube.com/watch?v=3oKwg6W05MU
Star Trek – negotiation v. arbitration

https://www.youtube.com/watch?v=iYCjqmbsmYA
Negotiation Breakfast Series – John Wade
Session 1 – The Last Gap (Gasp) in Negotiations 56m

Why is it important? How can it be crossed?
http://www.youtube.com/watch?v=wVqhxXrZmSI
Session 2 – How to be an Effective Hard Bargainer – 10 Methods

http://www.youtube.com/watch?v=ni-sawa89Tg
Session 3 – Risk Analysis 1 hr – Realplayer download

http://www.youtube.com/watch?v=P-_kChfI0sE
Session 4 – Persuasion in Neg & Med – 1 hr

http://www.youtube.com/watch?v=V3u5gCNJP04
Session 5 – Dueling Experts in Med, Neg & Litigation – 1hr

http://www.youtube.com/watch?v=Xc9ogEDTO8A
High Performance Negotiation Skills for Women – Part 1 – Leigh Thompson – 75 min
http://www.youtube.com/watch?v=bMWLimhNfTI
Neg Theory & Research: Gender & Race – Leigh Thompson 87min
http://www.youtube.com/watch?v=2aHtwLEg8R4

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Principles and

Professor John Barkai

2515 Dole Street · Honolulu, Hawaii 96822

Professor John Barkai --- University of Hawaii Law School - p. 1 -

Cooperative negotiators want to "work with" their opponents; they use

Interest-based bargaining attempts to shift the nature of negotiations to a more

Professor John Barkai --- University of Hawaii Law School - p. 2 -

BATNA stands for the Best Alternative to a Negotiated Agreement. It represents

Professor John Barkai --- University of Hawaii Law School - p. 3 -

Professor John Barkai --- University of Hawaii Law School - p. 4 -

Professor John Barkai --- University of Hawaii Law School - p. 5 -

(additional comments by John Barkai)

1. SEPARATE THE PEOPLE FROM THE PROBLEM.

2. FOCUS ON INTERESTS NOT POSITIONS.

3. INVENT OPTIONS FOR MUTUAL GAIN.

4. INSIST ON OBJECTIVE CRITERIA.

5. KNOW YOUR BATNA.

Professor John Barkai --- University of Hawaii Law School - p. 6 -

Professor John Barkai --- University of Hawaii Law School - p. 7 -

1. Expanding the Pie.

Professor John Barkai --- University of Hawaii Law School - p. 9 -

That time is broken down as follows:

Thoughts about listening

1. Listening is undervalued in our society.

THE BASIC PROBLEM IN LISTENING

Professor John Barkai --- University of Hawaii Law School - p. 10 -

The Only Way to Interrupt People

THE SWORD OF INSERTION

THE ULTIMATE EMPATHETIC SENTENCE

You have become the personification of empathy. Everything about that

FOURTEEN BENEFITS OF PARAPHRASING

Eight. Paraphrasing overcomes a strange phenomenon I call "sonic intention."

Ten. The tenth advantage of paraphrasing is that it prevents metaphrasing--

Metaphrasing is useful under only one condition. If you're working as a

Thirteen. Paraphrasing has an unusual psychological advantage I call

Because the amazing tool of paraphrasing provides these fourteen different

Professor John Barkai --- University of Hawaii Law School - p. 15 -

You can reframe something for yourself:

"This isn't a terrible job, it's an opportunity".

A therapist's definition of reframing which is useful for our purposes is

changing the emotional setting or viewpoint of situation and placing it in

Professor John Barkai --- University of Hawaii Law School - p. 16 -

In determining the attitude of the

Pay attention to body language, both theirs and yours.

What is their body saying?

What is your body saying to them?

Recognize, however, that nonverbal behavior can be

These days, everyone knows a "little" about body

Professor John Barkai --- University of Hawaii Law School - p. 17 -

Nonverbal communication can be used during negotiations, mediations, facilitations, and

Professor John Barkai --- University of Hawaii Law School - p. 18 -

NONVERBAL COMMUNICATION FROM THE OTHER SIDE:

1) SQUARELY facing the client,

Professor John Barkai --- University of Hawaii Law School - p. 19 -

A great improvement can be made in negotiating

Before and during the negotiations, you should ask

What don't I know yet?

How am I going to find out the information I need?

Professor John Barkai --- University of Hawaii Law School - p. 20 -

Professor John Barkai --- University of Hawaii Law School - p. 21 -

PEOPLE RELATIONSHI ISSUES POSITIONS INTERESTS OPTIONS

Brainstorming Preliminary meeting to discuss a wide range of ideas & to discuss

Professor John Barkai --- University of Hawaii Law School - p. 25 -