William goldman



Yüklə 0.54 Mb.
səhifə1/9
tarix08.08.2018
ölçüsü0.54 Mb.
  1   2   3   4   5   6   7   8   9

WILLIAM GOLDMAN 10/3/2011

For Educational Use Only

WHEN DAVID MEETS GOLIATH: DEALING WITH POWER..., 5 Harv. Negotiation L....








5 Harv. Negotiation L. Rev. 1

Harvard Negotiation Law Review

Spring 2000

Article

WHEN DAVID MEETS GOLIATH: DEALING WITH POWER DIFFERENTIALS IN NEGOTIATIONS

Robert S. Adlerd1; Elliot M. Silversteindd1

Copyright (c) 2000 Harvard Negotiation Law Review; Robert S. Adler; Elliot M. Silverstein

[T]he fundamental concept in social science is power, in the same sense in which energy is the fundamental concept in physics.

Bertrand Russell1 Power is America’s last dirty word. It is easier to talk about money-and much easier to talk about sex-than it is to talk about power.



Rosabeth Moss Kantor2

I.

Introduction

4

II.

Power: What it is and Where it Comes From

8




A. Power Broadly Characterized

8




B. Power as Social Interaction

9




C. The Nature of Power

10




1. Power is complex and situational

10




2. Perceptions play a key role in power dynamics

12




3. To have effective power, one must be willing to use it or be able to convince an opponent that one will use it

16




4. Having greater power does not guarantee successful bargaining outcomes

16




5. Power in negotiations typically arises from the dependence that each party has on the other

19




6. Negotiation power depends less on the other side’s strength than on one’s own needs, fears, and available options

20




7. Power is neither inherently good nor bad

21




D. Sources of Power

22




1. Personal Power

23




2. Organizational Power

24




3. Information Power

26




4. Moral Power

28

III.

Power Imbalances in Negotiations: Legal Issues

28




A. Undue Influence

29




B. Protections in Arm’s Length Transactions

31




1. Fraud

32




2. Duress

39




3. Unconscionability

42




4. Good Faith and Fair Dealing in Contractual Performance and Enforcement

49




5. The Special Case of Good Faith in Precontractual Negotiations

52




6. Legal Protections for Negotiators Facing Power Disparities: Final Thoughts

54

IV.

Strategic Bargaining in Unequal Power Settings: General Considerations

55




A. Characteristics of Effective Negotiators

55




B. “Know Thyself”: Self Awareness and Self-Assessment

59




C. The Need for Careful Preparation

61




1. Determining Goals and Interests

62




2. Target Points, Aspiration Bases, Walkaway Points, BATNAs, and MSPs

64




3. Information Exchange: Seeking Answers and Resisting Inquiries

67




4. “First Offer” and Concession Strategy

74

V.

Bargaining With More Powerful Parties: Specific Approaches

77




A. Determine Whether the Other Side Really is More Powerful

79




B. Determine Whether Adversaries Understand and Will Use Their Power

80




C. Use Opening Moves to Set the Tone and to Deflect Power Ploys

81




D. Use Information Strategically to Increase Power

84




E. Develop Additional Alternatives to Improve One’s “Walkaway Point”

86




F. Research Available Legal Protections

88




G. Explore Interests As Alternatives to Power Ploys

89




H. Avoid Unnecessary Conflict, But Retaliate If Necessary

90




I. Identify and Counter Power Ploys

92




1. Intimidating Atmosphere

93




2. “Good Guy/Bad Guy”

94




3. Anger, Threats and the Madman’s Advantage

95




4. Boulwarism, or “Take It Or Leave It”

97




5. Limited Authority

98




6. Artificial and Actual Deadlines

100




7. Other Power Ploys and General Responses

101




J. Involve Mediators to Balance Power Differentials

103




K. Form an Alliance Against the More Powerful Party

105




L. Appeal to a Powerful Adversary’s Sense of Justice and Fairness

106




M. Use Weakness as a Source of Strength

108

VI.

Bargaining With Weaker Parties: Advice For the Powerful

110

VII.

Conclusion

112

*4 I. Introduction

As social animals,3 we negotiate4 constantly, usually on a daily basis.5 When we negotiate, we typically recognize-albeit rarely with *5 explicit acknowledgement-the underlying power configuration that applies to each negotiation. The degree of power that each party brings to the negotiation affects the room for maneuver that each feels is available in bargaining situations. To pick the simplest of examples, assume a “negotiation” between a robber and his or her victim regarding the victim’s wallet. If the would-be robber-slight and unarmed-demands the wallet from a large, stout-hearted, and strong victim, the transaction may be marred for the robber by the victim’s refusal to hand over the wallet. If, however, the robber flashes a loaded pistol accompanied by sufficient threats to convince the victim of his willingness to use the weapon, he or she is much less likely to encounter resistance. In this case, the operative dynamic is power-the victim complies with the robber’s demands because the armed robber has so much more power than the victim.6

Few negotiations present such a stark contrast in power--where one party literally has life-or-death control over another--but most carry some disparity in the degree of leverage between the parties. The power differential can occur by happenstance, but often results from the conscious actions of the negotiators. Almost without exception, parties preparing for or engaged in negotiation seek greater power to improve the outcome for themselves.7

As teachers of negotiation both to law and business students, we have long sought to understand and explain the proper use of power in negotiation settings. In particular, we have tried to prepare our students for situations in which they perceive themselves to face significantly more powerful opponents. To our surprise, few useful sources address this critical topic.8 We find this distressing because we believe the proper use of power to be one of the most valuable *6 lessons that one can learn about negotiation.9 This topic is particularly important because certain common assumptions about the use of power turn out, upon close scrutiny, to be flawed. For instance, greater power, by itself, does not necessarily produce more favorable agreements for the powerful.10

In this article, we explore the concept of power disparities in negotiation. To assess this issue properly, we examine the concept of power, identify effective sources of power, review the legal protections available to those who face disparities of power, and offer a set of suggestions that bargainers (both lawyers and non-lawyers) may find useful in negotiating situations involving power disparities.11

At the outset, we note that the prevailing legal paradigm for negotiated contracts assumes that two or more rational parties bargain *7 at “arm’s length” to reach agreement.12 Disparities in power leading to agreements that favor one party are generally permitted13 unless the disparities produce an “unconscionable” or otherwise improper bargain.14 Precisely when and how this occurs remains unclear,15 but superior bargaining power, by itself, rarely stands as a basis for invalidating a contract unless this power is somehow abused.16

That the law redresses imbalances in bargaining power only in fairly extreme cases means that knowing one’s legal rights, while essential,17 is not enough. Dealing with power disparities-even as the party with greater power-also requires developing and improving one’s negotiation skills.18

*8 II. Power: What it is and Where it Comes From

A. Power Broadly Characterized

To effectively address the challenges presented by power disparities, one first needs to understand the basic concept of power.19 In the broadest and most elemental sense, power is the “ability to act or produce an effect.”20 But what does it mean when we say that a person has power? Most observers agree that the critical element of power is the ability to have one’s way, either by influencing others to do one’s bidding or by gaining their acquiescence to one’s action.21 This necessarily includes the ability to achieve one’s ends even in the face of opposition.22 Power does not exclude the ability to persuade or to inspire others. Although the ability to persuade and inspire is an important element of power, the critical test of power is whether one’s goals can be met even when charm and persuasiveness prove inadequate to the task. This is a decidedly unsentimental view of *9 power. Yet, we cannot see any other way to capture its essence and to distinguish it from closely related, but less compelling, concepts such as influence23 or charisma.24

B. Power as Social Interaction

The type of power that most of us are concerned with is social in nature.25 We are routinely influenced by power in a social context: negotiating with bosses, colleagues, business associates and family *10 members. Thus, power as discussed in this article is a relational concept, pertaining to use between two or more people.26 Without social relationships,27 power becomes a fairly limited and uninteresting topic.




Dostları ilə paylaş:
  1   2   3   4   5   6   7   8   9


Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur ©genderi.org 2017
rəhbərliyinə müraciət

    Ana səhifə