labor & employment law specialty group...

Advanced Negotiation Labor & Employment Law

Specialty Group Presentation

Provided by Michael J. Leech, Talk Sense Mediation | 2012 | www.talk-sense.com

Review of Stages

 Negotiation stages – Preparation – Preliminary –  Information Gathering – Competitive – Closing – Post-Closing

 Preparation: Assess Negotiation Styles

Negotiating Styles

  Cooperative –  Maximize joint return –  Reasonable results –  Courteous, sincere –  Realistic opening –  Objective standards –  Rarely threaten –  Open, disclosing –  Use reasoning

  Competitive –  Maximize own return –  Extreme results –  Adversarial, mislead –  Unrealistic opening –  Positions, no standard –  Use threats –  Minimize disclosure –  Use manipulation

Negotiating Styles

  Cooperative –  Move towards

opponent –  Cooperative with other

cooperative types –  Competitive with

competitive types –  Viewed by others as

being more effective negotiators

  Competitive –  Move against

opponent –  Competitive with both

types –  More likely to achieve

extremely favorable results

–  Much more likely to reach no agreement

Information Gathering Stage

 Ascertaining interests – Underlying needs and desires – Distributive vs. win-win situations

 Types of interests – “Survival” needs – Action/behavior needs – Economic needs – Emotional needs

Emotional Dynamics

  Affect both parties   Demonizing the adversary

–  Inevitable tendency in disputes –  Emotional trade-off –  Cognitive dissonance –  Reactive devaluation

  My intentions—your actions   Discount chance of unexpected outcome   Loss Aversion

Emotional Dynamics

 Tools to deal with emotional factors – Listen with empathy – Humanize – Stories – Jarring facts – Hard evidence – Common values – Reference to earlier experiences – Framing

Competitive Stage

  More on persuasion tools

–  Ploys (stupid negotiating tricks)

–  Principled argument

–  Power plays (threats, warnings & promises)

–  Decision tree

–  Dealing with difficult people

Competitive Stage-Ploys

  Stupid Negotiating Tricks

–  Larger bargaining team

–  Time pressures

–  Mutt & Jeff (good cop-bad cop)

–  Limited authority

–  Uproar (threat of havoc)



–  Anger (real or feigned)

–  Walking out & hanging up

–  Irrational behavior

–  Probing challenge to extreme position (Columbo)

–  Getting personal



–  Passive aggression

–  “So what?” trivializing concessions

–  Dumb like a fox

–  “Boulwareism”—Last offer at outset

–  Gender and race manipulation

Competitive Stage - Principled Argument

  Using principled argument to persuade

–  Evenhanded, seemingly objective approach   Logical   Orderly   Comprehensive   Articulate

–  Documented information

–  Going beyond the expected

Competitive Stage – Power Play

  Using power to persuade-influence adversary’s evaluation of: –  His or her vulnerability –  Your options –  Your capabilities

  Threats: –  Carefully communicated and totally understood –  Proportionate to situation (action is logical) –  Corroborative information (“Yes, I really can do this.”) –  Consistent history of carrying out threats.

Competitive Stage – Power Play

  Using power to persuade

–  Warnings:   Consequences from another’s actions   Less direct and confrontational   Appear beyond speaker’s control

–  Promises:   “If you . . . , I’ll . . . ”   Less confrontational approach

Competitive Stage - Decision Tree

  Illustrates the full range of possibilities   Identify key decision points

–  Summary judgment (yes/no) –  Jury verdict (yes/no) –  Damages (artificial levels—high, medium and low)

  Calculate outcome (dollars)   Probability of each outcome (walk down path)   Multiply probability times dollars for each branch   Add up totals for settlement value

Competitive Stage - Decision Tree

 Hypothetical Problem—breach of contract – Contract construction legal issue (sum. jgt.) – Performance issue (jury question) – Damage issue (mitigation)

 Stages – Summary judgment – defense can win here – Trial- performance issue subject to jury whims – Damages - liability compromise effect

Sample Decision Tree

Competitive Stage – Difficult People

 Negotiation with difficult people  Do their end of the bargaining, too  Six Steps

– Prepare – Go to the balcony, diffuse emotions – Step to their side—understand – Reframe the impasse—find the real issue – Build a “golden bridge”—satisfy the need – Use power to educate


 Preparing – Ascertain both sides’ interests – Consider all options to accommodate interests – BATNA

 Assess your BATNA   Improve your BATNA  Assess their BATNA  Decide whether to negotiate

– Alternative Proposals


  Go to the balcony when provoked

–  Pause, say nothing (think)

–  Stonewall, trick or attack—identify to yourself

–  Go over history preceding provocation

–  Time out on negotiations if needed

–  Do not commit on the spot

–  Review your BATNA and theirs


  Step to their side –  Listen and paraphrase –  Ask why –  Acknowledge the point, feelings if appropriate –  Say “yes” without conceding –  Acknowledge their authority & competence –  Articulate your perspective by adding your viewpoint

  Never start with “But…”   Use “I…” instead of “You…”

–  Acknowledge difference, express optimism


 Reframe the issue & start problem solving – Ask problem-solving questions

  “What do you suggest?”   “How is that reasonable to my side?”   “Why not…?”   “What if…?”

– Overcoming Stone walls   Ignore  Reinterpret it as an aspiration  Test it


 Reframe the issue & start problem-solving – Deflecting Personal Attacks

  Ignore it  Address only the issue-related element  Change “you” and “I” into “we”

– Exposing Tricks  Test with questions you know the answer to  Make a reasonable request (assume sincerity)  Create conditions based on truth of statements  Openly identify tricks as impediments to a deal


 Build a “golden bridge” – Make the solution concrete and specific – Overcoming typical obstacles

 Not their idea—build from their ideas or criticisms  Unmet interests—identify & satisfy them   Loss of face—write their victory speech  Too much, too fast—go one step at a time

– Review adversary’s choices (their perspective)

– Don’t rush them


 Using power to educate – “What do you think I’ll do?” (BATNA) – “Where will you be then?” (BATNA) – “Is this proposal better for you than that?” – Enlist available allies – Allow them to choose

 Build in accountability for non-compliance

labor & employment law specialty group...

Documents