William goldman



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*86 In still other cases, one might disclose some, but not all, of the information one holds at an early stage of the negotiation. One might disclose more as the negotiation progresses. Revealing more and more of what one knows can impress the other side and convince him or her that one holds more information than one might actually have.

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

As we have discussed,346 one extremely effective way of dealing with more powerful parties is by creating attractive alternatives to an agreement with the stronger party. Creating alternatives, i.e., improving one’s “walkaway point” or BATNA, enhances power by reducing one’s dependence on the other side. By seeking additional alternatives, one may look for other ways to meet one’s needs or to counter the negative actions that an opponent can take. In so doing, one can substantially affect the relative power of each party. That is, one who has acquired new alternatives becomes more powerful, and the other party less so, with respect to the transaction at hand.

One of the most positive aspects of developing alternatives is that in many cases they can be pursued outside of the immediate negotiation setting, without a high-powered adversary’s knowledge or interference. For example, an employee who has quietly secured several attractive job offers before asking for a raise has enhanced his or her leverage without having to confront the employee’s boss. With a tightfisted or overbearing superior, this may be the most effective strategy available. Not only has the employee improved the prospects for a raise, he or she may appear more valuable to the company because of the outside hiring interest.

Because attractive alternatives may take time to create, one who seeks to develop them needs to plan in advance what they will be and how to secure them.347 In addition, one needs to prepare for whether and when one will reveal them to the other side. Sometimes, parties openly and aggressively seek alternatives. In the case of the 1980 Olympics hosted by the Russian government, for example, the Soviets insisted that there be multiple bidders, ensuring that if one network dropped out, another would be available to buy. Publicly pitting the three major American television networks against one another, the *87 Russians substantially enhanced Soviet leverage in the negotiations.348

One should also be alert to the possibilities of an opponent trying to maintain his or her leverage by eliminating one’s alternatives. Suppressing or eliminating an opponent’s alternatives affects power dynamics in reverse fashion to that of adding them. The party who succeeds in doing so effectively increases his or her power by making the other weaker. To illustrate, we cite another example of Russian negotiating tactics. In the mid-1950s, the Soviets wished to purchase a tract of land on Long Island, New York to provide a recreation site for its embassy employees. As an initial step, they obtained an exclusive one-year option on the land for a small amount of cash, and insisted that the option be kept secret. They then began negotiating with the land owners, but, to the owners’ dismay, the Russians offered only pitifully small amounts. Slowly, it dawned on the owners that, by signing the option, they had given up any ability to turn to other purchasers. Saddled with no immediately available alternatives and needing cash immediately, the owners eventually sold to the Russians at a substantially reduced price.349

Sometimes even the unsuccessful pursuit of alternatives can produce positive results if it intimidates an opponent or demonstrates the tenuous nature of an opponent’s power position. For example, in 1937, after the U.S. Supreme Court had declared eleven of President Roosevelt’s New Deal laws unconstitutional,350 the President took the extraordinary step of seeking legislation to expand the number of Justices on the Court. Expanding the Court would have permitted him to appoint enough liberal Justices so that his legislation would be upheld. Despite Roosevelt’s immense popularity, the Congress refused to pass the bill. Nonetheless, the initiative evidently unsettled *88 the Court enough so that it suddenly reversed itself and began upholding legislation that it had previously invalidated.351

We cannot overemphasize the power of seeking alternatives. The more desperate a weaker party’s position, the more aggressively we would advise him or her to seek alternatives. For example, the British almost overnight assembled a rag-tag fleet of ships and boats to rescue the 300,000-plus soldiers stranded in Dunkirk, France at the beginning of World War II. Without such an alternative, those soldiers would either have been killed or captured, perhaps turning the tide of war for the Nazis. Faced with imminent defeat, the British crafted a last-minute alternative that few would have thought possible. The worried negotiator should similarly search for options in the midst of adversity.

F. Research Available Legal Protections

As we have discussed, although common law protections for weaker parties exist, they typically require the stronger party to have inflicted some form of overreaching or abuse.352 While our review suggests that the number of instances in which courts will invalidate agreements is limited, we still counsel a careful examination of existing law when one confronts a more powerful party-particularly when one is a consumer facing a commercial entity.

In many instances, federal and state legislatures have enacted specific consumer rights protections in response to consumer complaints about imbalances in bargaining power with merchants. As a result, many common consumer transactions are covered by some sort of protective legislation. Purchases of real estate, cars, consumer durables, cable and satellite television services typically fall under one or more consumer protection statutes.353 In many cases, the statutes require specific disclosures designed to reduce overreaching by sellers. In others, legislation provides specific redress that goes far beyond common law protections.354 One can substantially enhance negotiation leverage by determining that the other side must *89 comply with specific statutory provisions before entering into a contract.

G. Explore Interests As Alternatives to Power Ploys

As unabashed admirers of Fisher and Ury’s “principled negotiation” model,355 we endorse the approach of actively seeking to satisfy mutual interests, whenever possible, over engaging in power displays. Under a principled negotiation approach, bargainers seek ways, regardless of which side holds a power advantage, to sidestep conflict and to focus on exploring and meeting each other’s needs. Anything that distracts the parties from pursuing interests undermines the likelihood of reaching agreement. In fact, the parties may discover that their interests do not conflict and that both may be satisfied. Moreover, few negotiators enter a round of bargaining with the goal of simply overwhelming the opposition. That is not to say that negotiators never seek to pulverize the other side. Clearly, they sometimes do (triggering one’s walkaway point if one is prepared). But, annihilation, if attempted, is usually a means to reach negotiation goals, not an end in itself. Powerful parties, lacking patience or negotiation expertise, may resort to brute force if not shown another way. They may, however, be drawn to more collaborative means if convinced that these means will satisfy their goals. This is where principled negotiation, if done well, proves to be so powerful. Because it focuses on meeting needs, not on power plays, it should hold more allure for the parties truly interested in reaching substantive agreements.356

*90 H. Avoid Unnecessary Conflict, But Retaliate If Necessary

One way to ensure that the parties will stay focused on pursuing interests is to avoid unnecessary conflict. We stress the term “unnecessary” because we realize that some level of conflict neither can be nor should be avoided. Our point is that if one loses his or her temper in a negotiation, the likelihood of an acceptable agreement diminishes rapidly. In particular, one should try to avoid reacting destructively to another’s annoying style, especially when the other side attempts to play a power game. One generally needs to react, but in a way that promotes positive movement.357 Rather than accuse, one should describe the situation and one’s feelings to alert the other side that the bargaining has become more tense. We offer the following advice for communicating displeasure to another:358

explain the behavior that upsets you in specific and objective terms;359

describe your feelings about what bothers you;

try to get your opponent to view the matter from your perspective;

do not accuse your opponent of misbehavior;

show respect for your opponent; and

apologize for any misunderstanding that your own behavior might have caused if that will help move the discussion without making you appear weak.

What is critical in situations where one party has unleashed a power play or has acted in a way that offends an opponent is to provide feedback that the behavior will not be tolerated, but to do so in a manner that does not begin a cycle of attack and retaliation.360 Much *91 of Professor Ury’s book, Getting Past No, focuses on ways of doing this. He freely acknowledges that power plays often occur in negotiations and, in fact, advocates that one employ power in appropriate ways. But, he argues for a judicious and strategic approach:

Treat the exercise of power as an integral part of the problem-solving negotiation. Use power to bring the other side to the table. Instead of seeking victory, aim for mutual satisfaction. Use power to bring them to their senses, not to their knees . . . . Use your power to educate the other side that the only way for them to win is for both of you to win together. Assume the mind-set of a respectful counselor. Act as if they have simply miscalculated how best to achieve their interests. Focus their attention on their interest in avoiding the negative consequences of no agreement.361

The way one brings the other side to their senses is by using power to educate, to convince the other side that a negotiated agreement that satisfies both sides’ interests is a more sensible solution than mutual destruction.362 How does one do this? There is no guaranteed approach, of course, but we advise that one speak in sadness about how a resolution through conflict would be deplorable-making sure to describe the tools in one’s arsenal that could be deployed in such a circumstance. Doing this sends a signal that although one is not defenseless, one prefers a negotiated settlement.

Moments when power ploys have been attempted or when emotions run high require careful attention to subtle signals from the other side. By pushing hard for concessions in a visible manner, the other party has made it difficult for himself or herself to back down without embarrassment. This is the point when one needs to provide an easy way for the other side to retreat363 and to look for small, indirect signs that one’s opponent has decided to do so.364

In those cases where a subtle approach does not deter a power ploy, one may well have to move from hints of dire consequences to *92 more explicit approaches. Even here, however, we urge a low-key approach. Research suggests that careful warnings are less likely to escalate conflict than express threats.365 The trick is to show the capability to take effective action against an opponent, but always to indicate a preference for a negotiated agreement.

Finally, in some instances, one may have no choice but to take punitive action against an opponent who has launched an attack as a means of gaining advantage in a negotiation. Failure to retaliate, unfortunately, invites exploitation.366 The form of punitive action that one takes is critical. One should always characterize one’s action as defensive in nature and point explicitly to the action that provoked it. Simultaneously, one should insist that one seeks to resolve differences by negotiation, not by power plays. Defensive actions lessen the chance for conflict escalation (in contrast to offensive actions designed to establish dominance).367

I. Identify and Counter Power Ploys

Perhaps the most commonly cited reason given by our students for taking a course about negotiation is to learn how to use and to counter bargaining “tricks” and “ploys.” Virtually every expert who has written on the topic of negotiation has offered advice on negotiation tricks.368 The number of potential ploys is enormous,369 leading some, we fear, to conclude that those who learn the largest number of tricks will “win” the negotiation. We disagree. Although one should certainly be alert for power ploys and tricks, we remain skeptical that *93 most can prove successful against negotiators who have planned carefully and who have thought out their strategies thoroughly.370

Most power ploys and tricks aim to gain a psychological advantage. Some do so by tricking opponents into lowering their guards and revealing valuable information; others seek to intimidate or disorient adversaries so that they lose focus and open themselves to exploitation; still others attempt to maneuver other parties to negotiate against themselves, i.e., to engage in a series of unilateral offers that are not reciprocated. We briefly describe below several of the more commonly used ploys and then offer some suggestions for countering them.

1. Intimidating Atmosphere

Because negotiation power arises from perceptions, those who effectively manage the image they present can substantially enhance their leverage when they bargain. They seek “impression management” through a combination of tactics.371 They dress in “power” clothing, they work in large, elegant offices,372 and they sprinkle their discussion with important names and events with which they have personal connections. Other more aggressive measures include: insisting that meetings be held on one’s home turf, scheduling meetings for inconvenient times, seating opponents in uncomfortable chairs, seating opponents with the sun in their faces, making opponents wait for extended periods for meetings to start, interrupting meetings with “important” phone calls to impress or intimidate opponents, engaging in side conversations that demonstrate “toughness” while knowing that one’s opponents are overhearing the conversations, or asserting that certain issues are “non-negotiable.”373

*94 Perhaps the most effective way to deal with these annoying ploys is to act confidently and ignore them.374 In some cases, however, it may be necessary to take specific steps to counter them. In most cases, merely identifying the tactic and asking that it cease will put an end to the ploy. For example, if one has been kept waiting for a meeting to start, one might pleasantly, but firmly, inform the other side that one does not appreciate being kept waiting and ask whether future meetings will start late.

2. “Good Guy/Bad Guy”

One of the most widely recognizable power ploys, the so-called “good guy/bad guy” technique, appears to command a large following despite the fact that its use rarely surprises any of those subjected to it.375 The approach is simple: A team of at least two negotiators subjects the target to “tough” and then to “kind” treatment. Or, one negotiator treats the person harshly while another treats him or her gently. The trick is for the “bad guy” to get the victim sufficiently intimidated, disoriented, or angered that the person looks to the “good guy” for guidance or support. The victim, bonding with the good guy, then makes damaging concessions or admissions to his “buddy.” Numerous “B-movies” have depicted this technique as invariably effective during police interrogations.

Despite the popularity of the ploy, we know of no empirical research demonstrating that it produces anything other than annoyed or amused reactions among those subjected to it. Most negotiations in which “good guy/bad guy” is used occur outside of police custody, which means that, unlike the criminal suspect, most negotiators can walk away from the table. Given that the ploy is almost instantly recognizable, we find ourselves skeptical that it operates very effectively with negotiators of even moderate sophistication.

We offer two responses for dealing with this technique. The most simple is to identify its use and to call for the parties to end the *95 ploy.376 Another, more subtle, response is to adopt a “divide and conquer” approach by negotiating primarily with the more accommodating party. The benefit of this latter approach is that occasionally one will encounter opponents who genuinely carry differing personality traits and who are not trying a power play. In this case, focusing on the accommodating party may well produce an agreement heavily weighted in one’s favor.

3. Anger, Threats and the Madman’s Advantage

We can think of no greater deal breaker than runaway emotions. In fact, we suspect that as many negotiations terminate because of lost tempers and hurt feelings as from irreconcilable goals.377 Once triggered, emotional spirals tend to follow predictable patterns, typically escalating rapidly and often irretrievably.378 Given the explosive nature of emotions, one might imagine that negotiators would hesitate to use angry displays to achieve negotiation results. Yet, this seems to happen all the time. Most negotiators at one time or another have encountered opponents who react angrily at even the slightest objection to their offers-often with great success. Anger, it seems, can be extremely effective at times by breaking impasses, emphasizing points, and dissolving opposition. Anger may work because *96 parties see angry opponents as being particularly sincere and committed on the points that have triggered their temper loss.379 Facing such strong feelings, the parties may seek to accommodate them by making concessions that they otherwise might not have made.

At the more extreme levels of fury lies what Professor Schoonmaker refers to as the “Madman’s Advantage.”380 That is, negotiators can sometimes achieve their goals by acting irrationally. This approach works, he notes, because irrational parties appear indifferent to the possibility of retaliation or revenge that might deter others, thus raising the cost of conflict to potentially unacceptable levels.

Effective responses to anger vary widely.381 If an opponent’s anger has disoriented a negotiator, it makes sense to call a break in the negotiation in order to give both sides an opportunity to regain their composure. In some cases, ignoring the temper tantrum can embarrass and quiet the angry opponent. In other instances, responding with a temper display of one’s own can lead the angry opponent to abandon the approach. Humor can also defuse a tense situation.382 Similarly, an apology may dissipate tension. An apology, however, may be misperceived as weakness or concession and therefore must be done in a way that avoids an appearance of weakness.383 Finally, if one’s opponent has a reputation for angry outbursts, it may be wise at the outset to negotiate the “rules of engagement” -such as no personal attacks, no yelling, and no smirks or scowls.


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