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Look, $3,500 is all you'll get. Take it or leave it. $3,500 may be fair. I don't know. I certainly understand your position if you're bound by...

Look, $3,500 is all you'll get. Take it or leave it. $3,500 may be fair. I don't know. I certainly understand your position if you're bound by company policy. But unless you can state objectively why that amount is what I'm entitled to, I think I'll do better in court. Why don't we study the matter and talk again? Is Wednesday at eleven a good time to talk? * * * OK, Mr. Griffith, I've got an ad here in today's paper offering a '89 Taurus for $6,800. I see. What does it say about the mileage? 49,000. Why? Because mine only had 25,000 miles. How many dollars does that increase the worth in your book? Let me see... $450. Assuming the $6,800 as one possible base, that brings the figure to $7,250. Does the ad say anything about a radio? No. How much extra for that in your book? $125. How much for air conditioning? * * * A half-hour later Tom walked out with a check for $8,024. Ill Yes, But... 6. What If They Are More Powerful? (Develop Your BATNA — Best Alternative to a Negotiated Agreement) 7. What If They Won't Play? (Use Negotiation Jujitsu) 8. What If They Use Dirty Tricks? (Taming the Hard Bargainer) 49  6. What If They Are More Powerful? (Develop Your BATNA — Best Alternative to a Negotiated Agreement) Of what use is talking about interests, options, and standards if the other side has a stronger bargaining position? What do you do if the other side is richer or better connected, or if they have a larger staff or more powerful weapons? No method can guarantee success if all the leverage lies on the other side. No book on gardening can teach you to grow lilies in a desert or cactus in a swamp. If you enter an antique store to buy a sterling silver George IV tea set worth thousands of dollars and all you have is one hundred-dollar bill, you should not expect skillful negotiation to overcome the difference. In any negotiation there exist realities that are hard to change. In response to power, the most any method of negotiation can do is to meet two objectives: first, to protect you against making an agreement you should reject and second, to help you make the most of the assets you do have so that any agreement you reach will satisfy your interests as well as possible. Let's take each objective in turn. Protecting yourself When you are trying to catch an airplane your goal may seem tremendously important; looking back on it, you see you could have caught the next plane. Negotiation will often present you with a similar situation. You will worry, for instance, about failing to reach agreement on an important business deal in which you have invested a great deal of yourself. Under these conditions, a major danger is that you will be too accommodating to the views of the other side — too quick to go along. The siren song of "Let's all agree and put an end to this" becomes persuasive. You may end up with a deal you should have rejected. The cost of using a bottom line. Negotiators commonly try to protect themselves against such an outcome by establishing in advance the worst acceptable outcome — their "bottom line." If you are buying, a bottom line is the highest price you would pay. If you are selling, a bottom line is the lowest amount you would accept. You and your spouse might, for example, ask $200,000 for your house and agree between yourselves to accept no offer below $160,000. Having a bottom line makes it easier to resist pressure and temptations of the moment. In the house for example, it might be impossible for a buyer to pay more than $144,000; everyone involved may know that you bought the house last year for only $135,000. In this situation, where you have the power to produce agreement and the buyer does not, the brokers and anyone else in the room may turn to you. Your predetermined bottom line my save you from making a decision you later regret. If there is more than one person on your side, jointly adopting a bottom line helps to ensure that no one will indicate to the other side that you might settle for less. It limits the authority of a lawyer, broker, or other agent. "Get the best price you can, but you are not authorized to sell for less than $160,000," you might say. If your side is a loose coalition of newspaper unions negotiating with an association of publishers, agreement on a bottom line reduces the risk that one union will be split off by offers from the other side. But the protection afforded by adopting a bottom line involves high costs. It limits your ability to benefit from what you learn during negotiation. By definition, a bottom line is a position that is not to be changed. To that extent you have shut your ears, deciding in advance that nothing the other party says could cause you to raise or lower that bottom line. A bottom line also inhibits imagination. It reduces the incentive to invent a tailor-made solution which would reconcile differing interests in a way more advantageous for both you and them. Almost every negotiation involves more than one variable. Rather than simply selling your place for $160,000, you might serve your interests better by settling for $135,000 with a first refusal on resale, a delayed closing, the right to use the barn for storage for two years, and an option to buy back two acres of pasture. If you insist on a bottom line, you are not likely to 50 explore an imaginative solution like this. A bottom line — by its very nature rigid — is almost certain to be too rigid. Moreover, a bottom line is likely to be set too high. Suppose you are sitting around the breakfast table with your family trying to decide the lowest price you should accept for your house. One family members suggests $100,000. Another replies, "We should get at least $140,000." A third chimes in, "$140,000 for our house? That would be a steal. It's worth at least $200,000." Who sitting at the table will object, knowing they will benefit from a higher price? Once decided upon, such a bottom line may be hard to change and may prevent your selling the house when you should. Under other circumstances a bottom line may be too low: rather than selling at such a figure, you would have been better off renting. In short, while adopting a bottom line may protect you from accepting a very bad agreement, it may keep you both from inventing and from agreeing to a solution it would be wise to accept. An arbitrarily selected figure is no measure of what you should accept. Is there an alternative to the bottom line? Is there a measure for agreements that will protect you against both accepting an agreement you should reject and rejecting an agreement you should accept? There is. Know your BATNA. When a family is deciding on the minimum price for their house, the right question to ask is not what they "ought" to be able to get, but what they will do if by a certain time they have not sold the house. Will they keep it on the market indefinitely? Will they rent it, tear it down, turn the land into a parking lot, let someone else live in it rent-free on condition they paint it, or what? Which of those alternatives is most attractive, all things considered? And how does that alternative compare with the best offer received for the house? It may be that one of those alternatives is more attractive than selling the house for $160,000. On the other hand, selling the house for as little as $124,000 may be better than holding on to it indefinitely. It is most unlikely that any arbitrarily selected bottom line truly reflects the family's interests. The reason you negotiate is to produce something better than the results you can obtain without negotiating. What are those results? What is that alternative? What is your BATNA — your Best Alternative To a Negotiated Agreement? That is the standard against which any proposed agreement should be measured. That is the only standard which can protect you both from accepting terms that are too unfavorable and from rejecting terms it would be in your interest to accept. Your BATNA not only is a better measure but also has the advantage of being flexible enough to permit the exploration of imaginative solutions. Instead of ruling out any solution which does not meet your bottom line, you can compare a proposal with your BATNA to see whether it better satisfies your interests. The insecurity of an unknown BATNA. If you have not thought carefully about what you will do if you fail to reach an agreement, you are negotiating with your eyes closed. You may, for instance, be too optimistic and assume that you have many other choices: other houses for sale, other buyers for your secondhand car, other plumbers, other jobs available, other wholesalers, and so on. Even when your alternative is fixed, you may be taking too rosy a view of the consequences of not reaching agreement. You may not be appreciating the full agony of a lawsuit, a contested divorce, a strike, an arms race, or a war. One frequent mistake is psychologically to see your alternatives in the aggregate. You may be telling yourself that if you do not reach agreement on a salary for this job, you could always go to California, or go South, or go back to school, or write, or work on a farm, or live in Paris, or do something else. In your mind you are likely to find the sum of these options more attractive than working for a specific salary in a particular job. The difficulty is that you cannot have the sum total of all those other options; if you fail to reach agreement, you will have to choose just one. In most circumstances, however, the greater danger is that you are too committed to reaching agreement. Not having developed any alternative to a negotiated solution, you are 51 unduly pessimistic about what would happen if negotiations broke off. As valuable as knowing your BATNA may be, you may hesitate to explore alternatives. You hope this buyer or the next will make you an attractive offer for the house. You may avoid facing the question of what you will do if no agreement is reached. You may think to yourself, "Let's negotiate first and see what happens. If things don't work out, then I'll figure out what to do." But having at least a tentative answer to the question is absolutely essential if you are to conduct your negotiations wisely. Whether you should or should not agree on something in a negotiation depends entirely upon the attractiveness to you of the best available alternative. Formulate a trip wire. Although your BATNA is the true measure by which you should judge any proposed agreement, you may want another test as well. In order to give you early warning that the content of a possible agreement is beginning to run the risk of being too unattractive, it is useful to identify one far from perfect agreement that is better than your BATNA. Before accepting any agreement worse than this trip-wire package, you should take a break and reexamine the situation. Like a bottom line, a trip wire can limit the authority of an agent. "Don't sell for less than $158,000, the price I paid plus interest, until you've talked to me." A trip wire should provide you with some margin in reserve. If after reaching the standard reflected in your trip wire you decide to call in a mediator, you have left him with something on your side to work with. You still have some room to move. Making the most of your assets Protecting yourself against bad agreement is one thing. Making the most of the assets you have in order to produce a good agreement is another. How do you do this? Again the answer lies in your BATNA. The better your BATNA, the greater your power. People think of negotiating power as being determined by resources like wealth, political connections, physical strength, friends, and military might. In fact, the relative negotiating power of two parties depends primarily upon how attractive to each is the option of not reaching agreement. Consider a wealthy tourist who wants to buy a small brass pot for a modest price from a vendor at the Bombay railroad station. The vendor may be poor, but he is likely to know the market. If he does not sell the pot to this tourist, he can sell it to another. From his experience he can estimate when and for how much he could sell it to someone else. The tourist may be wealthy and "powerful," but in this negotiation he will be weak indeed unless he knows approximately how much it would cost and how difficult it would be to find a comparable pot elsewhere. He is almost certain either to miss his chance to buy such a pot or to pay too high a price. The tourist's wealth in no way strengthens his negotiating power. If apparent, it weakens his ability to buy the pot at a low price. In order to convert that wealth into negotiating power, the tourist would have to apply it to learn about the price at which he could buy an equally or more attractive brass pot somewhere else. Think for a moment about how you would feel walking into a job interview with no other job offers — only some uncertain leads. Think how the talk about salary would go. Now contrast that with how you would feel walking in with two other job offers. How would that salary negotiation proceed? The difference is power. What is true for negotiations between individuals is equally true for negotiations between organizations. The relative negotiating power of a large industry and a small town trying to raise taxes on a factory is determined not by the relative size of their respective budgets, or their political clout, but by each side's best alternative. In one case, a small town negotiated a company with a factory just outside the town limits from a "goodwill" payment of $300,000 a year to one of $2,300,000 a year. How? The town knew exactly what it would do if no agreement was reached: It would expand the town limits to include the factory and then tax the factory the full residential rate of some $2,500,000 a year. The corporation had committed itself to keeping the factory; it had developed no alternative to reaching agreement. At first glance the corporation seemed to have a great deal 52 of power. It provided most of the jobs in the town, which was suffering economically; a factory shutdown or relocation would devastate the town. And the taxes the corporation was already paying helped provide the salaries of the very town leaders who were demanding more. Yet all of these assets, because they were not converted into a good BATNA, proved of little use. Having an attractive BATNA, the small town had more ability to affect the outcome of the negotiation than did one of the world's largest corporations. Develop your BATNA. Vigorous exploration of what you will do if you do not reach agreement can greatly strengthen your hand. Attractive alternatives are not just sitting there waiting for you; you usually have to develop them. Generating possible BATNAs requires three distinct operations: (1) inventing a list of actions you might conceivably take if no agreement is reached; (2) improving some of the more promising ideas and converting them into practical alternatives; and (3) selecting, tentatively, the one option that seems best. The first operation is inventing. If, by the end of the month, Company X does not make you a satisfactory job offer, what are some things you might do? Take a job with Company Y? Look in another city? Start a business on your own? What else? For a labor union, alternatives to a negotiated agreement would presumably include calling a strike, working without a contract, giving a sixty-day notice of a strike, asking for a mediator, and calling on union members to "work to rule." The second stage is to improve the best of your ideas and turn the most promising into real options. If you are thinking about working in Chicago, try to turn that idea into at least one job offer there. With a Chicago job offer in hand (or even having discovered that you are unable to produce one) you are much better prepared to assess the merits of a New York offer. While a labor union is still negotiating, it should convert the ideas of calling in a mediator and of striking into drafts of specific operational decisions ready for execution. The union might, for instance, take a vote of its membership to authorize a strike if a settlement is not achieved by the time the contract expires. The final step in developing a BATNA is selecting the best among the options. If you do not reach agreement in the negotiations, which of your realistic options do you now plan to pursue? Having gone through this effort, you now have a BATNA. Judge every offer against it. The better your BATNA, the greater your ability to improve the terms of any negotiated agreement. Knowing what you are going to do if the negotiation does not lead to agreement will give you additional confidence in the negotiating process. It is easier to break off negotiations if you know where you're going. The greater your willingness to break off negotiations, the more forcefully you can present your interests and the basis on which you believe an agreement should be reached. The desirability of disclosing your BATNA to the other side depends upon your assessment of the other side's thinking. If your BATNA is extremely attractive — if you have another customer waiting in the next room — it is in your interest to let the other side know. If they think you lack a good alternative when in fact you have one, then you should almost certainly let them know. However, if your best alternative to a negotiated agreement is worse for you than they think, disclosing it will weaken rather than strengthen your hand. Consider the other side's BATNA. You should also think about the alternatives to a negotiated agreement available to the other side. They may be unduly optimistic about what they can do if no agreement is reached. Perhaps they have a vague notion that they have a great many options and are under the influence of their cumulative total. The more you can learn of their options, the better prepared you are for negotiation. Knowing their alternatives, you can realistically estimate what you can expect from the negotiation. If they appear to overestimate their BATNA, you will want to lower their expectations. Their BATNA may be better for them than any fair solution you can imagine. Suppose you are a community group concerned about the potential noxious gases to be emitted by a power 53 plant now under construction. The power company's BATNA is either to ignore your protests altogether or to keep you talking while they finish building the plant. To get them to take your concerns seriously, you may have to file suit seeking to have their construction permit revoked. In other words, if their BATNA is so good they don't see any need to negotiate on the merits, consider what you can do to change it. If both sides have attractive BATNAs, the best outcome of the negotiation — for both parties — may well be not to reach agreement. In such cases a successful negotiation is one in which you and they amicably and efficiently discover that the best way to advance your respective interests is for each of you to look elsewhere and not to try further to reach agreement. When the other side is powerful If the other side has big guns, you do not want to turn a negotiation into a gunfight. The stronger they appear in terms of physical or economic power, the more you benefit by nego- tiating on the merits. To the extent that they have muscle and you have principle, the larger a role you can establish for principle the better off you are. Having a good BATNA can help you negotiate on the merits. You can convert such resources as you have into effective negotiating power by developing and improving your BATNA. Apply knowledge, time, money, people, connections, and wits into devising the best solution for you independent of the other side's assent. The more easily and happily you can walk away from a negotiation, the greater your capacity to affect its outcome. Developing your BATNA thus not only enables you to determine what is a minimally acceptable agreement, it will probably raise that minimum. Developing your BATNA is perhaps the most effective course of action you can take in dealing with a seemingly more powerful negotiator. 7. What If They Won't Play? (Use Negotiation Jujitsu) Talking about interests, options, and standards may be a wise, efficient, and amicable game, but what if the other side won't play? While you try to discuss interests, they may state their position in unequivocal terms. You may be concerned with developing possible agreements to maximize the gains of both parties. They may be attacking your proposals, concerned only with maximizing their own gains. You may attack the problem on its merits; they may attack you. What can you do to turn them away from positions and toward the merits? There are three basic approaches for focusing their attention on the merits. The first centers on what you can do. You yourself can concentrate on the merits, rather than on positions. This method, the subject of this book, is contagious; it holds open the prospect of success to those who will talk about interests, options, and criteria. In effect, you can change the game simply by starting to play a new one. If this doesn't work and they continue to use positional bargaining, you can resort to a second strategy which focuses on what they may do. It counters the basic moves of positional bargaining in ways that direct their attention to the merits. This strategy we call negotiation jujitsu. The third approach focuses on what a third party can do. If neither principled negotiation nor negotiation jujitsu gets them to play, consider including a third party trained to focus the discussion on interests, options, and criteria. Perhaps the most effective tool a third party can use in such an effort is the one-text mediation procedure. The first approach — principled negotiation — has already been discussed. Negotiation jujitsu and the one-text procedure are explained in this chapter. The chapter ends with a dialogue based on an actual landlord-tenant negotiation that illustrates in detail how you might persuade an unwilling party to play, using a combination of principled negotiation and negotiation jujitsu. 54  Negotiation jujitsu If the other side announces a firm position, you may be tempted to criticize and reject it. If they criticize your proposal, you may be tempted to defend it and dig yourself in. If they attack you, you may be tempted to defend yourself and counterattack. In short, if they push you hard, you will tend to push back. Yet if you do, you will end up playing the positional bargaining game. Rejecting their position only locks them in. Defending your proposal only locks you in. And defending yourself sidetracks the negotiation into a clash of personalities. You will find yourself in a vicious cycle of attack and defense, and you will waste a lot of time and energy in useless pushing and pulling. If pushing back does not work, what does? How can you prevent the cycle of action and reaction? Do not push back. When they assert their positions, do not reject them. When they attack your ideas, don't defend them. When they attack you, don't counterattack. Break the vicious cycle by refusing to react. Instead of pushing back, sidestep their attack and deflect it against the problem. As in the Oriental martial arts of judo and jujitsu, avoid pitting your strength against theirs directly; instead, use your skill to step aside and turn their strength to your ends. Rather than resisting their force, channel it into exploring interests, inventing options for mutual gain, and searching for independent standards. How does "negotiation jujitsu" work in practice? How do you sidestep their attack and deflect it against the problem? Typically their "attack" will consist of three maneuvers: asserting their position forcefully, attacking your ideas, and attacking you. Let's consider how a principled negotiator can deal with each of these. Don't attack their position, look behind it. When the other side sets forth their position, neither reject it nor accept it. Treat it as one possible option. Look for the interests behind it, seek out the principles which it reflects, and think about ways to improve it. Let's say you represent an association of teachers striking for higher pay and for seniority as the only criterion in layoffs. The school board has proposed a $1,000 raise across the board plus retention of the right to decide unilaterally who gets laid off. Mine their position for the interests that lie below the surface. "What exactly are the budget trade-offs involved in raising the salary schedule more than $1,000?" "Why do you feel a need to maintain complete control over layoffs?" Assume every position they take is a genuine attempt to address the basic concerns of each side; ask them how they think it addresses the problem at hand. Treat their position as one option and objectively examine the extent to which it meets the interests of each party, or might be improved to do so. "How will a $1,000 across-the-board increase keep our schools' salaries competitive with others in the area and thus assure that the students will have high-quality teachers?" "How could you satisfy the teachers that your evaluation procedure for layoffs would be fair? We believe that you personally would be fair, but what would happen if you left? How can we leave our livelihoods and our families' well-being up to a potentially arbitrary decision?" Seek out and discuss the principles underlying the other side's positions. "What is the theory that makes $1,000 a fair salary increase? Is it based on what other schools pay or what others with comparable qualifications make?" "Do you believe that the town's least experienced teachers should be laid off first or the most experienced — who, of course, have higher salaries?" To direct their attention toward improving the options on the table discuss with them hypothetically what would happen if one of their positions was accepted. In 1970, an American lawyer had a chance to interview President Nasser of Egypt on the subject of the Arab-Israeli conflict. He asked Nasser, "What is it you want Golda Meir to do?" Nasser replied, "Withdraw!" "Withdraw?" the lawyer asked. "Withdraw from every inch of Arab territory!" "Without a deal? With nothing from you?" the American asked incredulously. "Nothing. It's our territory. She should promise to withdraw," Nasser replied. 55  The American asked, "What would happen to Golda Meir if tomorrow morning she appeared on Israeli radio and television and said, 'On behalf of the people of Israel I hereby promise to withdraw from every inch of territory occupied in '67: the Sinai, Gaza, the West Bank, Jerusalem, the Golan Heights. And I want you to know, I have no commitment of any kind from any Arab whatsoever.'" Nasser burst out laughing, "Oh, would she have trouble at home!" Understanding what an unrealistic option Egypt had been offering Israel may have contributed to Nasser's stated willingness later that day to accept a cease-fire in the war of attrition. Don't defend your ideas, invite criticism and advice. A lot of time in negotiation is spent criticizing. Rather than resisting the other side's criticism, invite it. Instead of asking them to accept or reject an idea, ask them what's wrong with it. "What concerns of yours would this salary proposal fail to take into account?" Examine their negative judgments to find out their underlying interests and to improve your ideas from their point of view. Rework your ideas in light of what you learn from them, and thus turn criticism from an obstacle in the process of working toward agreement into an essential ingredient of that process. "If I understand you, you're saying you can't afford to give 750 teachers more than a $1,000 across-the-board raise. What if we accept that with the stipulation that any money saved by hiring fewer than 750 full- time teachers will be distributed as a monthly bonus to those teachers who are working?" Another way to channel criticism in a constructive direction is to turn the situation around and ask for their advice. Ask them what they would do if they were in your position. "If your jobs were at stake, what would you do? Our members are feeling so insecure about their jobs and frustrated by their shrinking dollars they're talking about inviting a militant union in to represent them. If you were leading this association, how would you act?" Thus, you lead them to confront your half of the problem. In doing so, they may be able to invent a solution that meets your concerns. "Part of the problem here seems to be that the teachers feel no one's listening. Would it help to have regular sessions at which teachers could meet with the school board?" Recast an attack on you as an attack on the problem. When the other side attacks you personally — as frequently happens — resist the temptation to defend yourself or to attack them. Instead, sit back and allow them to let off steam. Listen to them, show you understand what they are saying, and when they have finished, recast their attack on you as an attack on the problem. "When you say that a strike shows we don't care about the children, I hear your concern about the children's education. I want you to know that we share this concern: they are our children and our students. We want the strike to end so we can go back to educating them. What can we both do now to reach an agreement as quickly as possible?" Ask questions and pause. Those engaged in negotiation jujitsu use two key tools. The first is to use questions instead of statements. Statements generate resistance, whereas questions generate answers. Questions allow the other side to get their points across and let you understand them. They pose challenges and can be used to lead the other side to confront the problem. Questions offer them no target to strike at, no position to attack. Questions do not criticize, they educate. "Do you think it would be better to have teachers cooperating in a process they felt they were participating in, or actively resisting one they felt was imposed on them and failed to take their concerns into account?" Silence is one of your best weapons. Use it. If they have made an unreasonable proposal or an attack you regard as unjustified, the best thing to do may be to sit there and not say a word. If you have asked an honest question to which they have provided an insufficient answer, just wait. People tend to feel uncomfortable with silence, particularly if they have doubts about the merits of something they have said. For example, if a teacher's representative asks, "Why shouldn't teachers have a say in layoff policy?" the school board chairman might find himself at a loss: "Layoffs are a purely administrative matter.... Well, of course teachers have an interest in layoff policy, but they really aren't the best qualified to know who's a good teacher... Uh, what I mean is...." 56  Silence often creates the impression of a stalemate which the other side will feel impelled to break by answering your question or coming up with a new suggestion. When you ask questions, pause. Don't take them off the hook by going right on with another question or some comment of your own. Some of the most effective negotiating you will ever do is when you are not talking. Consider the one-text procedure You will probably call in a third party only if your own efforts to shift the game from positional bargaining to principled negotiation have failed. The problem you face may be illustrated by a simple story of a negotiation between a husband and wife who plan to build a new house. The wife is thinking of a two-story house with a chimney and a bay window. The husband is thinking of a modern ranch-style house, with a den and a garage with a lot of storage space. In the process of negotiating, each asks the other a number of questions, like "What are your views on the living room?" and "Do you really insist on having it your way?" Through answering such questions, two separate plans become more and more fixed. They each ask an architect to prepare first a sketch and then more detailed plans, ever more firmly digging themselves into their respective positions. In response to the wife's demand for some flexibility, the husband agrees to reduce the length of the garage by one foot. In response to his insistence on a concession, the wife agrees to give up a back porch which she says she had always wanted, but which did not even appear on her plan. Each argues in support of one plan and against the other. In the process, feelings are hurt and communication becomes difficult. Neither side wants to make a concession since it will likely lead only to requests for more concessions. This is a classic case of positional bargaining. If you cannot change the process to one of seeking a solution on the merits, perhaps a third party can. More easily than one of those directly involved, a mediator can separate the people from the problem and direct the discussion to interests and options. Further, he or she can often suggest some impartial basis for resolving differences. A third party can also separate inventing from decision-making, reduce the number of decisions required to reach agreement, and help the parties know what they will get when they do decide. One process designed to enable a third party to do all this is known as the one-text procedure. In the house-designing negotiation between husband and wife, an independent architect is called in and shown the latest plans reflecting the present positions of the husband and the wife. Not all third parties will behave wisely. One architect, for example, might ask the parties for clarification of their positions, press them for a long series of concessions, and make them even more emotionally attached to their particular solutions. But an architect using the one-text procedure would behave differently. Rather than ask about their positions he asks about their interests: not how big a bay window the wife wants, but why she wants it. "Is it for morning sun or afternoon sun? Is it to look out or look in?" He would ask the husband, "Why do you want a garage? What things do you need to store? What do you expect to do in your den? Read? Look at television? Entertain friends? When will you use the den? During the day? Weekends? Evenings?" And so forth. The architect makes clear he is not asking either spouse to give up a position. Rather, he is exploring the possibility that he might be able to make a recommendation to them — but even that is uncertain. At this stage he is just trying to learn all he can about their needs and interests. Afterwards, the architect develops a list of interests and needs of the two spouses ("morning sun, open fireplace, comfortable place to read, room for a shop, storage for snow- blower and medium-sized car," and so on). He asks each spouse in turn to criticize the list and suggest improvements on it. It is hard to make concessions, but it is easy to criticize. A few days later the architect returns with a rough floor plan. "Personally, I am dissatisfied with it, but before working on it further I thought I would get your criticisms." The husband might say, "What's wrong with it? Well, for one thing, the bathroom is too far from the bedroom. 57 I don't see enough room for my books. And where would overnight guests sleep?" The wife, too, is asked for her criticism of the first sketch. A short time later the architect comes back with a second sketch, again asking for criticism. "I've tried to deal with the bathroom problem and the book problem, and also with the idea of using the den as a spare bedroom. What do you think about this?" As the plan takes shape, each spouse will tend to raise those issues most important to him or to her, not trivial details. Without conceding anything, the wife, for example, will want to make sure that the architect fully understands her major needs. No one's ego, not even that of the architect, is committed to any draft. Inventing the best possible reconciliation of their interests within the financial constraints is separated from making decisions and is free of the fear of making an overhasty commitment. Husband and wife do not have to abandon their positions, but they now sit side by side, at least figuratively, jointly critiquing the plans as they take shape and helping the architect prepare a recommendation he may later present to them. And so it goes, through a third plan, a fourth, and a fifth. Finally, when he feels he can improve it no further, the architect says, "This is the best I can do. I have tried to reconcile your various interests as best I could. Many of the issues I have resolved using standard architectural and engineering solutions, precedent, and the best professional judgment I can bring to bear. Here it is. I recommend you accept this plan." Each spouse now has only one decision to make: yes or no. In making their decisions they know exactly what they are going to get. And a yes answer can be made contingent on the other side's also saying yes. The one-text procedure not only shifts the game away from positional bargaining, it greatly simplifies the process both of inventing options and of deciding jointly on one. In other negotiations, who could play the role of the architect? You could invite a third party in to mediate. Or, in negotiations involving more than two parties, a natural third party may be a participant whose interests on this issue lie more in effecting an agreement than in affecting the particular terms. In many negotiations that someone may be you. For instance, you may be a salesman for a plastics plant negotiating a large order with an industrial customer who makes plastic bottles. The customer may want a special kind of plastic made up for him, but the plant you represent may be reluctant to do the retooling needed for the order. Your commission depends more on effecting an agreement between your customer and your production people than on affecting the terms. Or you may be a legislative assistant for a senator who is more concerned with getting a certain appropriations bill passed than with whether the appropriation is ten million dollars or eleven. Or you may be a manager trying to decide an issue on which each of your two subordinates favors a different course of action; you care more about making a decision both can live with than about which alternative is chosen. In each of these cases, even though you are an active participant, it may be in your best interest to behave as a mediator would and to use the one-text procedure. Mediate your own dispute. Perhaps the most famous use of the one-text procedure was by the United States at Camp David in September 1978 when mediating between Egypt and Israel. The United States listened to both sides, prepared a draft to which no one was committed, asked for criticism, and improved the draft again and again until the mediators felt they could improve it no further. After thirteen days and some twenty-three drafts, the United States had a text it was prepared to recommend. When President Carter did recommend it, Israel and Egypt accepted. As a mechanical technique for limiting the number of decisions, reducing the uncertainty of each decision, and preventing the parties from getting increasingly locked into their positions, it worked remarkably well. The one-text procedure is a great help for two-party negotiations involving a mediator. It is almost essential for large multilateral negotiations. One hundred and fifty nations, for example, cannot constructively discuss a hundred and fifty different proposals. Nor can they make concessions contingent upon mutual concessions by everybody else. They need some way to simplify the process of decision-making. The one-text procedure serves that purpose. 58  You do not have to get anyone's consent to start using the one-text procedure. Simply prepare a draft and ask for criticism. Again, you can change the game simply by starting to play the new one. Even if the other side is not willing to talk to you directly (or vice versa), a third party can take a draft around. Getting them to play: The case of Jones Realty and Frank Turnbull The following real-life example of a negotiation between a landlord and tenant should give you a feel for how you might deal with a party who is reluctant to engage in principled negotiation. It illustrates what it means to change the game by starting to play a new one. The case in brief. Frank Turnbull rented an apartment in March from Jones Realty for $300 a month. In July, when he and his roommate, Paul, wanted to move out, Turnbull learned that the apartment was under rent control. The maximum legal rent was $233 a month — $67 less than he had been paying. Disturbed that he had been overcharged, Turnbull called on Mrs. Jones of Jones Realty to discuss the problem. At first, Mrs. Jones was unreceptive and hostile. She claimed to be right and accused Turnbull of ingratitude and blackmail. After several long negotiating sessions, however, Mrs. Jones agreed to reimburse Turnbull and his roommate. Her tone in the end became friendlier and apologetic. Throughout, Turnbull used the method of principled negotiation. Presented below is a selection of the exchanges that took place during the negotiation. Each exchange is headed by a stock phrase that a principled negotiator might use in any similar situation. Following each exchange is an analysis of the theory that lies behind it and its impact. "Please correct me if I'm wrong" TURNBULL: Mrs. Jones, I've just learned — please correct me if I'm wrong — that our apartment's under rent control. We've been told that the legal maximum rent is $233 a month. Have we been misinformed? Analysis. The essence of principled negotiation lies in remaining open to persuasion by objective facts and principles. By cautiously treating the objective facts as possibly inaccurate and asking Mrs. Jones to correct them, Turnbull establishes a dialogue based on reason. He invites her to participate by either agreeing with the facts as presented or setting them right. This game makes them two colleagues trying to establish the facts. The confrontation is defused. If Turnbull simply asserted the facts as facts, Mrs. Jones would feel threatened and defensive. She might deny the facts. The negotiation would not start off constructively. If Turnbull is genuinely mistaken, asking for corrections beforehand will make them easier to accept. To tell Mrs. Jones that these are the facts, only to learn he is wrong, would make him lose face. Worse yet, she would then doubt all the more anything else he says, making it difficult to negotiate. Making yourself open to correction and persuasion is a pillar in the strategy of principled negotiation. You can convince the other side to be open to the principles and objective facts you suggest only if you show yourself open to the ones they suggest. "We appreciate what you've done for us" TURNBULL: Paul and I understand you were doing us a personal favor by renting us this apartment. You were very kind to put in the time and effort, and we appreciate it. Analysis. Giving personal support to the person on the other side is crucial to separating the 59 people from the problem— separating relationship issues from the substantive merits. By expressing his appreciation of Mrs. Jones's good deeds, Turnbull in effect says, "We have nothing against you personally. We think you're a generous person." He puts himself on her side. He defuses any threat she may feel to her self-image. Praise and support, moreover, imply that the person will continue to deserve them. After being praised, Mrs. Jones now has a slight emotional investment in Turnbull's approval of her. She has something to lose and as a result may act more conciliatory. "Our concern is fairness" TURNBULL: We want to know that we didn't pay any more than we should have. When we're persuaded that the rent paid measures up fairly to the time spent in the apartment, we'll call it even and move out. Analysis. Turnbull takes a basic stand on principle and announces his intention to stick to it; he must be persuaded on the basis of principle. At the same time, he lets Mrs. Jones know he is open to persuasion along the lines of this principle. She is thus left with little choice but to reason with him in pursuit of her interests. Turnbull does not take a righteous stand on principle backed up with whatever power he possesses. Not only are his ends principled but also the means he contemplates. His ends, he claims, are a fair balance between rent paid and time spent. If convinced the rent paid is just right for the time spent, he will move out. If the rent paid is excessive, it is only fair that he remain in the apartment until the rent and the time spent are in balance. "We would like to settle this on the basis not of selfish interest and power but of principle" MRS. JONES: It's funny you should mention fairness, because what you're really saying is that you and Paul just want money, and that you're going to take advantage of your still being in the apartment to try and get it from us. That really makes me angry. If I had my way, you and Paul would be out of the apartment today. TURNBULL (barely controlling his anger): I must not be making myself clear. Of course it would be nice if Paul and I got some money. Of course, we could try and stay here in the apartment until you got us evicted. But that's not the point, Mrs. Jones. More important to us than making a few dollars here or there is the feeling of being fairly treated. No one likes to feel cheated. And if we made this a matter of who's got the power and refused to move, we'd have to go to court, waste a lot of time and money, and end up with a big headache. You would too. Who wants that? No, Mrs. Jones, we want to handle this problem fairly on the basis of some fair standard, rather than of power and selfish interest. Analysis. Mrs. Jones challenges the idea of negotiating on the basis of principle, calling it a charade. It's a matter of will and her will is to throw out Turnbull and his roommate today. At this Turnbull almost loses his temper — and with it his control over the negotiation. He feels like counterattacking: "I'd like to see you try to get us out. We'll go to court. We'll get your license revoked." The negotiation would then break off, and Turnbull would lose a lot of time, effort, and peace of mind. But instead of reacting, Turnbull keeps his temper and brings the negotiation back to the merits. This is a good example of negotiation jujitsu. He deflects Mrs. 60 Jones's attack by taking responsibility for her mistaken perceptions, and he tries to persuade her of his sincere interest in principle. He does not hide either his selfish interests or his leverage over her; on the contrary, he makes both explicit. Once they are acknowledged, he can separate them from the merits and they can cease being an issue. Turnbull also tries to give the game of principled negotiation some weight by telling Mrs. Jones this is his basic code — the way he always plays. He attributes this not to high-minded motives — which are always suspect — but to simple self-interest. "Trust is a separate issue" MRS. JONES: You don't trust me? After all I've done for you? TURNBULL: Mrs. Jones, we appreciate all you've done for us. But trust isn't the issue here. The issue is the principle: Did we pay more than we should have? What considerations do you think we should take into account in deciding this? Analysis. Mrs. Jones tries to manipulate Turnbull into a corner. Either he pursues the point and looks untrusting or he looks trusting and gives in. Turnbull slips out of the corner, however, by expressing his gratitude once more and then defining the question of trust as irrelevant. Turnbull at once reaffirms his appreciation of Mrs. Jones while he remains firm on the principle. Moreover, Turnbull does not just shunt aside the question of trust but actively directs the discussion back to principle by asking Mrs. Jones what considerations she thinks are relevant. Turnbull sticks to principle without blaming Mrs. Jones. He never calls her dishonest. He does not ask, "Did you take advantage of us?" but inquires more impersonally, "Did we pay more than we should have?" Even if he does not trust her, it would be a poor strategy to tell her so. She would probably become defensive and angry and might either withdraw into a rigid position or break off the negotiation altogether. It helps to have stock phrases like "It's not a question of trust" to turn aside ploys like Mrs. Jones's plea for trust. "Could I ask you a few questions to see whether my facts are right?" TURNBULL: Could I ask you a few questions to see whether the facts I've been given are right? Is the apartment really under rent control? Is the legal maximum rent really $233? Paul asked me whether this makes us parties to a violation of law. Did someone inform Paul at the time he signed the lease that the apartment was under rent control, and that the legal maximum was $67 lower than the rent he agreed to? Analysis. Statements of fact can be threatening. Whenever you can, ask a question instead. Turnbull might have declared, "The legal rent is $233. You broke the law. What's worse, you involved us in breaking the law without telling us so." Mrs. Jones would probably have reacted strongly to these statements, dismissing them as verbal attacks intended to score points. Phrasing each piece of information as a question allows Mrs. Jones to participate, listen to the information, evaluate it, and either accept or correct it. Turnbull communicates the same information to her but in a less threatening manner. He reduces the threat still further by attributing a particularly pointed question to his absent roommate. In effect, Turnbull induces Mrs. Jones to help lay a foundation of agreed-upon facts upon which a principled solution can be built. 61  "What's the principle behind your action?" TURNBULL: I'm not clear why you charged us $300 a month. What were your reasons for charging that much? Analysis. A principled negotiator neither accepts nor rejects the other side's positions. To keep the dialogue focused on the merits, Turnbull questions Mrs. Jones about the reasons for her position. He does not ask whether there were any reasons. He assumes there are good reasons. This flattering assumption leads the other side to search for reasons even if there are none, thus keeping the negotiation on the basis of principle. "Let me see if I understand what you're saying" TURNBULL: Let me see if I understand what you're saying, Mrs. Jones. If I've understood you correctly, you think the rent we paid is fair because you made a lot of repairs and improve- ments to the apartment since the last rent control evaluation. It wasn't worth your while to ask the Rent Control Board for an increase for the few months you rented the place to us. In fact, you rented it only as a favor to Paul. And now you're concerned that we may take unfair advantage of you and try to get money from you as the price for moving out. Is there something I've missed or misunderstood? Analysis. Principled negotiation requires good communication. Before responding to Mrs. Jones's arguments, Turnbull restates to her in positive terms what he has heard to make sure he has indeed understood her. Once she feels understood, she can relax and discuss the problem constructively. She can't dismiss his arguments on the grounds that they do not take into account what she knows. She is likely to listen now and be more receptive. In trying to sum up her point of view, Turnbull establishes a cooperative game in which both are making sure he understands the facts. "Let me get back to you" TURNBULL:Now that I think I understand your point of view, let me talk with my roommate and explain it to him. Can I get back to you tomorrow sometime? Analysis. A good negotiator rarely makes an important decision on the spot. The psychological pressure to be nice and to give in is too great. A little time and distance help separate the people from the problem. A good negotiator comes to the table with a credible reason in his pocket for leaving when he wants. Such a reason should not indicate passivity or inability to make a decision. Here, Turnbull sounds as if he knows exactly what he is doing, and he arranges to resume the negotiation at a given time. He shows not only decisiveness but also control over the course of the negotiation. Once away from the table, Turnbull can check on points of information and consult his "constituency," Paul. He can think about the decision and make sure he has not lost perspective. Too much time at the table may wear down one's commitment to principled negotiation. Returning to the table with renewed resolve, Turnbull can be soft on the person without being soft on the problem. "Let me show you where I have trouble following some of your reasoning" TURNBULL: Let me show you where I have trouble following some of your reasons for the extra $67 a month. One reason was the repairs and improvements on the apartment. The Rent Control Examiner said it would take about $10,000 in improvements to justify an increase of $67 62 a month. How much money was spent on improvements? I must admit it didn't seem like $10,000 worth to Paul and me. The hole in the linoleum you promised to repair was never fixed; neither was the hole in the living room floor. The toilet broke down repeatedly. These are just some of the defects and malfunctions we found. Analysis. In principled negotiation you should present all your reasons first before offering a proposal. If principles come afterwards, they appear not as the objective criteria which any proposal should satisfy but as mere justifications for an arbitrary position. For Turnbull to explain his reasons first shows his openness to persuasion and his awareness of the need to convince Mrs. Jones. If he announced his proposal first, Mrs. Jones probably would not bother to listen to the reasons that followed. Her mind would be elsewhere, considering what objections and counterproposals she could make. "One fair solution might be...." TURNBULL: Given all the considerations we've discussed, one fair solution seems to be for Paul and me to be reimbursed for the amount of rent we paid in excess of the legal maximum. Does that sound fair to you? Analysis. Turnbull presents a proposal not as his, but as a fair option which deserves their joint consideration. He does not claim it is the only fair solution, but one fair solution. He is specific without digging himself into a position and inviting rejection. "If we agree.... If we disagree...." TURNBULL: If you and I could reach agreement now, Paul and I would move out immediately. If we can't reach an agreement, the hearing examiner at the Rent Control Board suggested that we stay in the apartment and withhold rent and/or sue you for reimbursement, treble damages, and legal fees. Paul and I are extremely reluctant to take either of these courses. We feel confident we can settle this matter fairly with you to your satisfaction and ours. Analysis. Turnbull is trying to make it easy for Mrs. Jones to say yes to his proposal. So he starts by making it clear that all it takes for the problem to go away is Mrs. Jones's agreement. The trickiest part of the message to communicate is the alternative if no agreement is reached. How can Turnbull get this across — he wants her to take it into account in her de- cision— without upsetting the negotiations? He bases the alternative on objective principle by attributing it to a legal authority — the hearing examiner. He distances himself personally from the suggestion. Nor does he say he will definitely take action. Instead, he leaves it as a possibility and emphasizes his reluctance to do anything drastic. Finally, he closes by affirming his confidence that a mutually satisfactory agreement will be reached. Turnbull's BATNA — his best alternative to a negotiated agreement — is probably neither staying in the apartment nor going to court. He and Paul have already rented another apartment and would greatly prefer to move out now. A lawsuit would be difficult, given their busy schedules, and even if they won, they might never be able to collect. Turnbull's BATNA is probably just to move out and stop worrying about the $670 overpayment. Since his BATNA is probably less attractive than Mrs. Jones thinks, Turnbull does not disclose it. "We'd be happy to see if we can leave when it's most convenient for you" MRS. JONES: When do you plan to move out? TURNBULL: As long as we've agreed on the appropriate rent for our time in the apartment, we'd be happy to see if we can leave when it's most convenient for you. When would you prefer? 63  Analysis. Sensing the possibility of a joint gain, Turnbull indicates his willingness to discuss ways of meeting Mrs. Jones's interest. As it turns out, Turnbull and Mrs. Jones have a shared interest in Turnbull moving out as soon as possible. Incorporating her interests into the agreement not only gives her more of a stake in it but also allows Mrs. Jones to save face. On the one hand, she can feel good about agreeing to a fair solution even though it costs her money. On the other, she can say that she got the tenants out of the apartment early. "It's been a pleasure dealing with you" TURNBULL: Paul and I do appreciate, Mrs. Jones, all that you've done for us, and I'm pleased that we've settled this last problem fairly and amicably. MRS. JONES: Thank you, Mr. Turnbull. Have a nice summer. Analysis. Turnbull ends the negotiation on a final conciliatory note toward Mrs. Jones. Because they successfully dealt with the problem independently of the relationship, neither party feels cheated or angry, and neither is likely to try to sabotage or ignore their agreement. A working relationship is maintained for the future. Whether you use principled negotiation and negotiation jujitsu, as Frank Turnbull did, or a third party with the one-text procedure, the conclusion remains the same: you can usually get the other side to play the game of principled negotiation with you, even if at first they appear unwilling. 8. What If They Use Dirty Tricks? (Taming the Hard Bargainer) Principled negotiation is all very well, but what if the other negotiator deceives you or tries to throw you off balance? Or what if he escalates his demands just when you are on the verge of agreement? There are many tactics and tricks people can use to try to take advantage of you. Everyone knows some of them. They range from lies and psychological abuse to various forms of pressure tactics. They may be illegal, unethical, or simply unpleasant. Their purpose is to help the user "win" some substantive gain in an unprincipled contest of will. Such tactics may be called tricky bargaining. If they recognize that a tricky bargaining tactic is being used against them, most people respond in one of two ways. The first standard response is to put up with it. It is unpleasant to rock the boat. You may give the other side the benefit of the doubt or get angry and promise yourself never to deal with them again. For now, you hope for the best and keep quiet. Most people respond this way. They hope that if they give in this time, the other side will be appeased and will not ask for more. Sometimes this works, more often it fails. This is how Neville Chamberlain, the British Prime Minister, responded in 1938 to Hitler's negotiating tactics. After Chamberlain thought he had an agreement, Hitler raised his demands. At Munich, Chamberlain, hoping to avoid war, went along. A year later, World War II started. The second common response is to respond in kind. If they start outrageously high, you start outrageously low. If they are deceptive, so are you. If they make threats, you make counterthreats. If they lock themselves into their position, you lock yourself even more tightly into yours. In the end either one party yields or, all too often, negotiation breaks off. Such tricky tactics are illegitimate because they fail the test of reciprocity. They are designed to be used by only one side; the other side is not supposed to know the tactics or is ex- pected to tolerate them knowingly. Earlier we argued that an effective counter to a one-sided 64 substantive proposal is to examine the legitimacy of the principle that the proposal reflects. Tricky bargaining tactics are in effect one-sided proposals about negotiating procedure, about the negotiating game that the parties are going to play. To counter them, you will want to engage in principled negotiation about the negotiating process. How do you negotiate about the rules of the game? There are three steps in negotiating the rules of the negotiating game where the other side seems to be using a tricky tactic: recognize the tactic, raise the issue explicitly, and question the tactic's legitimacy and desirability — negotiate over it. You have to know what is going on to be able to do something about it. Learn to spot particular ploys that indicate deception, those designed to make you uncomfortable, and those which lock the other side into their position. Often just recognizing a tactic will neutralize it. Realizing, for example, that the other side is attacking you personally in order to impair your judgment may well frustrate the effort. After recognizing the tactic, bring it up with the other side. "Say, Joe, I may be totally mistaken, but I'm getting the feeling that you and Ted here are playing a good-guy/bad-guy routine. If you two want a recess any time to straighten out differences between you, just ask." Discussing the tactic not only makes it less effective, it also may cause the other side to worry about alienating you completely. Simply raising a question about a tactic may be enough to get them to stop using it. The most important purpose of bringing the tactic up explicitly, however, is to give you an opportunity to negotiate about the rules of the game. This is the third step. This negotiation focuses on procedure instead of substance, but the goal remains to produce a wise agreement (this time about procedure) efficiently and amicably. Not surprisingly, the method remains the same. Separate the people from the problem. Don't attack people personally for using a tactic you consider illegitimate. If they get defensive it may be more difficult for them to give up the tactic, and they may be left with a residue of anger that will fester and interfere with other issues. Question the tactic, not their personal integrity. Rather than saying, "You deliberately put me here facing the sun," attack the problem: "I am finding the sun in my eyes quite distracting. Unless we can solve that problem, I may have to leave early to get some rest. Shall we revise the schedule?" It will be easier to reform the negotiating process than to reform those with whom you are dealing. Don't be diverted from the negotiation by the urge to teach them a lesson. Focus on interests, not positions. "Why are you committing yourself in the press to an extreme position? Are you trying to protect yourself from criticism? Or are you protecting your- self from changing your position? Is it in our mutual interest to have both of us use this tactic?" Invent options for mutual gain. Suggest alternative games to play. "How about our undertaking to make no statements to the press until we reach agreement or break off the talks?" Insist on using objective criteria. Above all, be hard on principle. "Is there a theory behind having me sit in the low chair with my back to the open door?" Try out the principle of reciprocity on them. "I assume that you will sit in this chair tomorrow morning?" Frame the principle behind each tactic as a proposed "rule" for the game. "Shall we alternate spilling coffee on one another day by day?" As a last resort, turn to your BATNA (your Best Alternative To a Negotiated Agreement) and walk out. "It's my impression that you're not interested in negotiating in a way that we both think will produce results. Here's my phone number. If I'm mistaken, I'm ready any time you are. Until then, we'll pursue the court option." If you are walking out on clearly legitimate grounds, as when they have deliberately deceived you about facts or their authority, and if they are genuinely interested in an agreement, they are likely to call you back to the table. Some common tricky tactics Tricky tactics can be divided into three categories: deliberate deception, psychological 65 warfare, and positional pressure tactics. You should be prepared to deal with all three. Below are a number of common examples of each type; for each in turn, we show how principled negotiation might be applied to counter it. Deliberate deception Perhaps the most common form of dirty trick is misrepresentation about facts, authority, or intentions. Phony facts. The oldest form of negotiating trickery is to make some knowingly false statement: "This car was driven only 5,000 miles by a little old lady from Pasadena who never went over 35 miles per hour." The dangers of being taken in by false statements are great. What can you do? Separate the people from the problem. Unless you have good reason to trust somebody, don't. This does not mean calling him a liar; rather it means making the negotiation proceed independent of trust. Do not let someone treat your doubts as a personal attack. No seller is likely to give you a watch or a car simply in exchange for your statement that you have money in the bank. Just as a seller will routinely check on your credit ("because there are so many other peo- ple around that can't be trusted"), you can do the same for statements of the other side. A practice of verifying factual assertions reduces the incentive for deception, and your risk of being cheated. Ambiguous authority. The other side may allow you to believe that they, like you, have full authority to compromise when they don't. After they have pressed you as hard as they can and you have worked out what you believe to be a firm agreement, they announce that they must take it to someone else for approval. This technique is designed to give them a "second bite at the apple." This is a bad situation to fall into. If only you have authority to make concessions, only you will make concessions. Do not assume that the other side has full authority just because they are there negotiating with you. An insurance adjuster, lawyer, or a salesman may allow you to think that your flexibility is being matched by flexibility on their side. You may later find that what you thought was an agreement will be treated by the other side as simply a floor for further negotiation. Before starting on any give-and-take, find out about the authority of the other side. It is perfectly legitimate to inquire, "Just how much authority do you have in this particular negotiation?" If the answer is ambiguous, you may wish to talk to someone with real authority or to make clear that you on your side are reserving equal freedom to reconsider any point. If they do announce unexpectedly that they are treating what you thought was an agreement as a basis for further negotiation, insist on reciprocity. "All right. We will treat it as a joint draft to which neither side is committed. You check with your boss and I'll sleep on it and see if I come up with any changes I want to suggest tomorrow." Or you might say, "If your boss approves this draft tomorrow, I'll stick by it. Otherwise each of us should feel free to propose changes." Dubious intentions. Where the issue is one of possible misrepresentation of their intention to comply with the agreement, it is often possible to build compliance features into the agree- ment itself. Suppose you are a lawyer representing the wife in a divorce negotiation. Your client does not believe her husband will pay child support even though he may agree to do so. The time and energy spent in going to court every month may make her give up the effort. What can you do? Make the problem explicit and use their protestations to get a guarantee. You could say to the husband's lawyer, "Look, my client is afraid those child support payments simply aren't going to be made. Rather than monthly payments, how about giving her equity in the house?" The husband's lawyer may say, "My client is perfectly trustworthy. We'll put it in writing that he will pay child support regularly." To which you might respond, "It's not a matter of trust. Are you 66 certain that your client will pay?" "Of course." "A hundred percent certain?" "Yes, I'm a hundred percent certain." "Then you won't mind a contingent agreement. Your client will agree to make child support payments. We'll provide that if, for some inexplicable reason which you estimate at zero percent probability, he misses two payments, my client will get the equity in the house (minus of course the amount your client has already paid out in child support) and your client will no longer be liable for child support." It is not easy for the husband's lawyer to object. Less than full disclosure is not the same as deception. Deliberate deception as to facts or one's intentions is quite different from not fully disclosing one's present thinking. Good faith negotiation does not require total disclosure. Perhaps the best answer to questions such as "What is the most you would pay if you had to?" would be along the following lines: "Let's not put ourselves under such a strong temptation to mislead. If you think no agreement is possible, and that we may be wasting our time, perhaps we could disclose our thinking to some trustworthy third party, who can then tell us whether there is a zone of potential agreement." In this way it is possible to behave with full candor about information that is not being disclosed. Psychological warfare These tactics are designed to make you feel uncomfortable, so that you will have a subconscious desire to end the negotiation as soon as possible. Stressful situations. Much has been written about the physical circumstances in which negotiations take place. You should be sensitive to such modest questions as whether a meeting takes place at your place or theirs, or on neutral territory. Contrary to the accepted wisdom, it is sometimes advantageous to accept an offer to meet on the other side's turf. It may put them at ease, making them more open to your suggestions. If necessary, it will be easier for you to walk out. If, however, you do allow the other side to choose the physical environment, be aware of what that choice is and what effects it may have. Ask yourself if you feel under stress, and if so, why. If the room is too noisy, if the temperature is too hot or cold, if there is no place for a private caucus with a colleague, be aware that the setting might have been deliberately designed to make you want to conclude negotiations promptly and, if necessary, to yield points in order to do so. If you find the physical surroundings prejudicial, do not hesitate to say so. You can suggest changing chairs, taking a break, or adjourning to a different location or another time. In every case your job is to identify the problem, be willing to raise it with the other side, and then negotiate better physical circumstances in an objective and principled fashion. Personal attacks. In addition to manipulating the physical environment, there are also ways for the other side to use verbal and nonverbal communication to make you feel uncom- fortable. They can comment on your clothes or your appearance. "Looks like you were up all night. Things not going well at the office?" They can attack your status by making you wait for them or by interrupting the negotiations to deal with other people. They can imply that you are ignorant. They can refuse to listen to you and make you repeat yourself. They can deliberately refuse to make eye contact with you. (Simple experiments with students have confirmed the malaise many feel when this tactic is used; and they are unable to identify the cause of the problem.) In each case recognizing the tactic will help nullify its effect; bringing it up explicitly will probably prevent a recurrence. The good-guy/bad-guy routine. One form of psychological pressure which also involves deception is the good-guy/bad-guy routine. This technique appears in its starkest form in old police movies. The first policeman threatens the suspect with prosecution for numerous crimes, puts him under a bright light, pushes him around, then finally takes a break and leaves, The good guy then turns off the light, offers the suspect a cigarette, and apologizes for the tough policeman. He says he'd like to control the tough guy, but he can't unless the suspect cooperates. 67 The result: the suspect tells all he knows. Similarly in a negotiation, two people on the same side will stage a quarrel. One will take a tough stand: "These books cost $8,000, and I won't accept a penny less." His partner looks pained and a little embarrassed. Finally he breaks in: "Frank, you are being unreasonable. After all, these books are two years old, even if they haven't been used much." Turning to the other side, he says reasonably, "Could you pay $7,600?" The concession isn't large, but it almost seems like a favor. The good-guy/bad-guy routine is a form of psychological manipulation. If you recognize it, you won't be taken in. When the good guy makes his pitch, just ask him the same question you asked the bad guy: "I appreciate that you are trying to be reasonable, but I still want to know why you think that's a fair price. What is your principle? I am willing to accept $8,000 if you can persuade me it's the fairest price." Threats. Threats are one of the most abused tactics in negotiation. A threat seems easy to make — much easier than an offer. All it takes is a few words, and if it works, you never have to carry it out. But threats can lead to counterthreats in an escalating spiral that can unhinge a negotiation and even destroy a relationship. Threats are pressure. Pressure often accomplishes just the opposite of what it is intended to do; it builds up pressure the other way. Instead of making a decision easier for the other side, it often makes it more difficult. In response to outside pressure, a union, a committee, a company, or a government may close ranks. Moderates and hawks join together to resist what they may perceive as an illegitimate attempt to coerce them. The question changes from "Should we make this decision?" to "Shall we cave in to outside pressure?" Good negotiators rarely resort to threats. They do not need to; there are other ways to communicate the same information. If it seems appropriate to outline the consequences of the other side's action, suggest those that will occur independently of your will rather than those you could choose to bring about. Warnings are much more legitimate than threats and are not vulnerable to counterthreats: "Should we fail to reach agreement, it seems highly probable to me that the news media would insist on publishing the whole sordid story. In a matter of this much public interest, I don't see how we could legitimately suppress information. Do you?" For threats to be effective they must be credibly communicated. Sometimes you can interfere with the communication process. You can ignore threats; you can. take them as unau- thorized, spoken in haste, or simply irrelevant. You can also make it risky to communicate them. At a coal mine where one of the authors was recently mediating, a large number of false but costly bomb threats were being received. These dropped off dramatically when the company's receptionist began answering all phone calls with "Your voice is being recorded. What number are you calling?" Sometimes threats can be turned to your political advantage. A union could announce to the press: "Management has such a weak case that they are resorting to threats." Perhaps the best response to a threat, however, is to be principled. "We have prepared a sequence of countermoves for each of management's customary threats. However, we have delayed taking action until we see whether we can agree that making threats is not the most constructive activity we could engage in just now." Or "I only negotiate on the merits. My reputation is built on not responding to threats." Positional pressure tactics This kind of bargaining tactic is designed to structure the situation so that only one side can effectively make concessions. Refusal to negotiate. When the American diplomats and embassy personnel were taken hostage in Tehran in November 1979, the Iranian government announced its demands and refused to negotiate. A lawyer will often do the same, simply telling opposing counsel, "I'll see you in court." What can you do when the other side refuses to negotiate altogether? First, recognize the tactic as a possible negotiating ploy: an attempt to use their entry into 68 negotiation as a bargaining chip to obtain some concession on substance. A variant on this ploy is to set preconditions for negotiations. Second, talk about their refusal to negotiate. Communicate either directly or through third parties. Don't attack them for refusing to negotiate, but rather find out their interests in not negotiating. Are they worried about giving you status by talking to you? Will those who talk with you be criticized for being "soft"? Do they think negotiation will destroy their precarious internal unity? Or do they simply not believe that an agreement is possible? Suggest some options, such as negotiating through third parties, sending letters, or encouraging private individuals like journalists to discuss the issues (as happened in the Iranian case). Finally, insist on using principles. Is this the way they would want you to play? Do they want you to set preconditions as well? Will they want others to refuse to negotiate with them? What are the principles they think should apply to this situation? Extreme demands. Negotiators will frequently start with extreme proposals like offering $75,000 for your house which is apparently worth $200,000. The goal is to lower your expectations. They also figure that an extreme initial position will give them a better end result, on the theory that the parties will ultimately end up splitting the difference between their positions. There are drawbacks to this approach, even for tricky bargainers. Making an extreme demand that both you and they know will be abandoned undermines their credibility- Such an opening may also kill the deal; if they offer too little, you may think they are not worth bothering with. Bringing the tactic to their attention works well here. Ask for principled justification of their position until it looks ridiculous even to them. Escalating demands. A negotiator may raise one of his demands for every concession he makes on another. He may also reopen issues you thought had been settled. The benefits of this tactic lie in decreasing the overall concession, and in the psychological effect of making you want to agree quickly before he raises any more of his demands. The Prime Minister of Malta used this tactic in negotiating with Great Britain in 1971 over the price of naval and air base rights. Each time the British thought they had an agreement, he would say, "Yes, agreed, but there is still one small problem." And the small problem would turn out to be a £10 million cash advance or guaranteed jobs for dockyard and base workers for the life of the contract. When you recognize this, call it to their attention and then perhaps take a break while you consider whether and on what basis you want to continue negotiations. This avoids an impulsive reaction while indicating the seriousness of their conduct. And again, insist on principle. When you come back, anyone interested in settlement will be more serious. Lock-in tactics. This tactic is illustrated by Thomas Schelling's well-known example of two dynamite trucks barreling toward each other on a single-lane road. The question becomes which truck goes off the road to avoid an accident. As the trucks near each other, one driver in full view of the other pulls off his steering wheel and throws it out the window. Seeing this, the other driver has a choice between an explosive crash or driving his truck off the road into a ditch. This is an example of an extreme commitment tactic designed to make it impossible to yield. Paradoxically, you strengthen your bargaining position by weakening your control over the situation. In labor-management and international negotiations this tactic is common. A union president makes a rousing speech to his constituency pledging that he will never accept less than a 15 percent salary increase. Since he stands to lose face and credibility if he does agree to anything less, he can more convincingly persuade management the union must have 15 percent. But lock-in tactics are gambles. You may call the other side's bluff and force them to make a concession which they will then have to explain to their constituency. Like threats, lock-in tactics depend on communication. If the other truck driver does not see the steering wheel fly out the window, or if he thinks the truck has an emergency steering 69 mechanism, the act of throwing the steering wheel out the window will not have its intended effect. The pressure to avoid a collision will be felt equally by both drivers. In response to a commitment tactic, therefore, you may be able to interrupt the communication. You can so interpret the commitment as to weaken it. "Oh I see. You told the papers your goal was to settle for $200,000. Well, we all have our aspirations, I guess. Do you want to know what mine are?" Alternatively, you can crack a joke and not take the lock-in seriously. You can also resist lock-ins on principle: "Fine, Bob, I understand you made that statement publicly. But my practice is never to yield to pressure, only to reason. Now let's talk about the merits of the problem." Whatever you do, avoid making the commitment a central question. Deemphasize it so that the other side can more gracefully back down. Hardhearted partner. Perhaps the most common negotiating tactic used to justify not yielding to your requests is for the other negotiator to say that he personally would have no objection but his hardhearted partner will not let him. "It's a perfectly reasonable request, I agree. But my wife absolutely refuses to go along with me on it." Recognize the tactic. Rather than discussing it with the other negotiator, you may want to get his agreement to the principle involved — perhaps in writing — and then if possible speak directly with the "hardhearted partner." A calculated delay. Frequently one side will try to postpone coming to a decision until a time they think favorable. Labor negotiators will often delay until the last few hours before a strike deadline, relying on the psychological pressure of the deadline to make management more malleable. Unfortunately, they often miscalculate and the strike deadline passes. Once the strike begins, management, in turn, may decide to wait for a more favorable time, such as when the union's strike fund has run out. Waiting for the right time is a high-cost game. In addition to making delaying tactics explicit and negotiating about them, consider creating a fading opportunity for the other side. If you represent one company negotiating a merger with another, start talks with a third company, exploring the possibility of merging with them instead. Look for objective conditions that can be used to establish deadlines, such as the date on which taxes are due, the annual trustees meeting, the end of the contract, or the end of the legislative session. "Take it or leave it." There is nothing inherently wrong with confronting the other side with a firm choice. In fact, most American business is conducted this way. If you go into a supermarket and see a can of beans marked 75 cents, you don't try to negotiate with the supermarket manager. This is an efficient method of conducting business, but it is not nego- tiation. It is not interactive decision-making. Nor is there anything wrong after long negotiations to conclude them when you mean to do so by saying, "Take it or leave it," except that you should probably phrase it more politely. As an alternative to explicitly recognizing the "Take it or leave it" tactic and negotiating about it, consider ignoring it at first. Keep talking as if you didn't hear it, or change the subject, perhaps by introducing other solutions. If you do bring up the tactic specifically, let them know what they have to lose if no agreement is reached and look for a face-saving way, such as a change in circumstances, for them to get out of the situation After management has announced its final offer, the union could tell them, "A $1.69 raise was your final offer before we discussed our cooperative efforts to make the plant more productive." Don't be a victim It is often hard to decide what it means to negotiate in "good faith." People draw the line in different places. It may help to ask yourself such questions as: Is this an approach I would use in dealing with a good friend or a member of my family? If a full account of what I said and did appeared in the newspapers, would I be embarrassed? In literature, would such conduct be more appropriate for a hero or a villain? These questions are not intended to bring external opinion to bear so much as to shed light on your own internal values. You must decide on your own 70