Styles, strategies and tactics in Negotiation

Question 1

What are the different ADR styles?

Answer 1

• Co-operative
• Competitive/confrontational

Question 2

Co-operative approach

Answer 2

Approach:

• focus on settlement
• offering information
• accepting concessions
• fairness
• conciliatory approach
• constructive tactics

Strengths:

• agreement likely
• appropriate concessions are seen as principled
• supports a continuing relationship
• fewer risks of the negotiation breaking down

Weaknesses:

• undermined by competitive opponent
• too easy to see settlement as main goal
• can lead to unnecessary concessions and weaker outcome
• may volunteer information and get little/nothing in return
• may try to avoid confrontation instead of seeking best outcome
• may fail to fully use strengths of case

Question 3

Competitive/positional approach

Answer 3

Approach:

• seeks to win, get best possible outcome
• settlement not seen as a goal
• adversarial
• not constructive
• high demands
• limited justification
• giving limited information but seeking a lot
• seeking success on every issue
• using unpleasant tactics (threats, bluffing)

Strengths:

• very successful against weak/poorly prepared opponent
• high starting position tends to lead to better settlement
• more successful where there are fewer issues (where issues are money based, too)
• successful for party with strong case
• little chance of exploitation

Weaknesses

• many lawyers not susceptible to this aggressive and manipulative behaviour
• damages ongoing relationship
• focus on ‘winning’ may ignore potential advantages of collaboration
• increased stress and tension
• over-confidence can be undermined by well-prepared opponent
• not effective to deal with complex issues
• can become a battle

Question 4

Collaborative

Principled/Problem-solving

Answer 4

Different strands:

Principled – tries to achieve outcome that is objectively fair against some external authoritative norm (e.g. based on the example of an agreed expert)

Problem-solving – focuses on both parties’ real needs and interests, tries to get a practical solution without building costs

Approach:

• parties explore underlying interests, share information and are creative
• trying to identify options for mutual gain
• working together is stressed at the start
• constructive approach, focus on best possible outcome
• issues approached from point of view of needs and interests rather than fault and blame
• open and reasonable atmosphere
• emphasis on objectivity, and a potential settlement is often judged against agreed criteria to test fairness

Strengths:

• capable of achieving very good outcomes because it explores anything of potential benefit
• creative
• good chance of success
• even if there is no agreement, areas of conflict usually decreased
• techniques to expand resources rather than divide them
• rational and reasonable approach easy to manage
• well-prepared collaborative strategy can be successful against a competitive opponent

Weaknesses

• both parties must be collaborative
• may require substantial preparation of options
• attempts to collaborate may be defeated or exploited by competitive opponent
• may be difficult to use in court-door negotiations because of time pressure
• may have little to offer in a case where options cannot be developed

Principled negotiation elements:

• separating the people from the problem (avoiding emotion)
• focusing on interest rather than positions
• looking for options to benefit both sides (win-win)
• using objective standards
• developing a best alternative to a negotiated agreement

Question 5

Pragmatic strategy

Answer 5

• adapting strategy to meet the needs of the particular negotiation
• different strategy for each separate issue
• may be most effective where there is limited information and need to get more facts before deciding how to proceed
• may be appropriate where you do not know your opponent and cannot predict what strategy he will adopt

Question 6

How do you choose a negotiating strategy?

Answer 6

Planning should include:

• a preferred overall strategy
• how to open the negotiation to provide a firm foundation
• fallback option
• separate strategies

Be aware of how the parties’ strategies can interact:

• two competitive may create deadlock
• two co-operative may not get the best agreement
• do not try to exploit too much – the opposing party can always refuse an offer

Question 7

What negotiating tactics can be used with:

Information

Offers and Demands

Structure

Presentation

Law

Answer 7

Information

• questioning
• statements
• revealing/concealing information
• reframing – to objectively redress how a difficult opponent is presenting his case

Offers and demands

• pre-conditions and setting parameters
• objective standards
• authority to settle
• ultimata
• proposing additional outcomes

Structure

• imposing structure
• ignoring structure
• parking issues
• moving on
• re-opening issues
• “Just one more thing”
• avoiding deadlock

Presentation

• abruptness
• evasion
• silence
• time to think
• prepare a draft
• bluffing
• aggression
• threats

Law

• using legal terminology and tests
• using research