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Listening to Transcend Competition
and Cooperation
Brian A. Pappas
Editors’ Note: The author offers a supposedly basic tool, that of actually listening to your counterpart in a negotiation, as an answer to a supposedly basic dilemma—whether to cooperate or compete. He argues that negotiators tend to adopt one or the other as a general approach, but that neither outright competition nor excessive cooperation actually works to produce good results. A disciplined approach to active listening, he argues, is key to unlocking your latent ability to perform in the parts of negotiation with which you are less naturally comfortable. This chapter should be read in conjunction with Itzchakov and Kluger on Listening & Understanding.
The Negotiator’s Dilemma Persists
In any bargaining scenario, negotiators face the dilemma of deciding between competitive tactics designed to claim or distribute value, and cooperative tactics designed to create or integrate value (Lax and Sebenius 1986). The negotiator’s dilemma is actually not so much one of whether to compete or cooperate, but how and when to do each, as every single negotiation presents opportunities to 1) divide the existing pie, and 2) create more pie. This is nearly the entire theory of negotiation in a tidy, compact, and simplistic nutshell. Sprouting from the basic dilemma is a variety of labels, styles, and behaviors which attempt to define the essential dichotomy. Competitive tactics are commonly described as distributive, adversarial, claiming, or deceptive (Craver 1997; Sanchez 2003; Nelken 2007; Craver 2012; Apollon 2013). Cooperative tactics are assumed to be collaborative, integrative, creative, expansive, principled or problem-solving (Menkel-Meadow 1984; Macfarlane 2004; Fisher, Ury and Patton 2011; Rau, Sherman and Peppet 2006; Menkel-Meadow, Schneider and Love 2014; Cohen 2016).
The definition of dilemma is “a choice between two unsatisfactory options” (Merriam-Webster 2016), and the negotiator’s dilemma is today exactly that, presenting an oversimplified means of explaining the tension between two negotiation styles. In reality the negotiator’s dilemma inhibits core skill development in favor of styles and strategies which adjust over the course of a negotiation (Schneider and Brown 2013). Styles often belie strategies as effective negotiators may employ an approach that combines attributes of two styles to appear to be cooperative but actually be quite competitive (Williams and Craver 2007). Instead of selecting a style and identifying behaviors that define each, negotiation theory must refocus on skills like active listening that are neither inherently competitive nor cooperative (Schneider 2012).
This chapter advocates for learning skills over styles, and describes the reasons why the persistence of the dilemma is harmful to skills development. The dilemma accurately depicts the tension between attempting to compete versus cooperate, but the layers of labels and styles perpetuate the essential dilemma instead of providing context and depth for skill development. Negotiation is not simply a dilemma between compete and cooperate. The real dilemma is why negotiators are still talking about the singular, oversimplified distinction of compete versus cooperate.
The Negotiator’s Dilemma Inhibits Skills Development
More than an oversimplification of negotiation theory, the dilemma actually inhibits negotiation skills development—and in six different ways. First, the dilemma operates as a threshold choice that limits a well-rounded development of negotiation skill. In an either/or framework, negotiators make style choices. Many people are attracted to the myth of the negotiator as John Wayne, Dirty Harry, or Gordon Gekko who has tricks, tactics, and techniques that manipulate or coerce the other side into submission. Others reject these tactics as unsavory or outside of their abilities, and make conscious decisions not to compete. There is a perception that cooperating in negotiation is retreat or weakness, and this leads to an automatic aversion to gaining cooperative skills. It also leads people who naturally tend to want to be more cooperative to second-guess their instincts and to seek to over-compete in order to prove themselves. The negotiator’s dilemma provides a threshold style choice that allows competitive negotiators to reject cooperative bargaining and cooperative bargainers to reject competitive bargaining. As a...
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For full contents please purchase The Negotiator’s Desk Reference.
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References
Apollon, G. 2013. MMA Negotiation. University of Denver Sports and Entertainment Law Journal 15: 3-26.
Bazerman, M. and M. Neale. 1992. Negotiating Rationally. New York: The Free Press.
Bush, R. A. B. and J. P. Folger. 2004. The Promise of Mediation: The Transformative Approach to Conflict, 2nd edn. Danvers, MA: Wiley.
Bush, R. A. B. and J. P. Folger. 2010. Transformative Mediation: Theoretical Foundations. In Transformative Mediation: A Sourcebook, edited by J. P. Folger, R. A. B. Bush and D. J. D. Noce. Dayton, OH: Institute for the Study of Conflict Transformation.
Cialdini, R. B. 2007. Influence: The Psychology of Persuasion. New York: William Morrow Company.
Cohen, J. R. 2014. Open-Minded Listening. Charlotte Law Review 5: 139-164.
Cohen, J. R. 2016. A Genesis of Conflict: The Zero-Sum Mindset. Cardozo Journal of Conflict Resolution 17: 427-444.
Condlin, R. A. 2007. Bargaining With A Hugger: The Weaknesses and Limitations of a Communitarian Conception of Legal Dispute Bargaining, or Why We Can’t All Just Get Along. Cardozo Journal of Conflict Resolution 9: 1-90.
Craver, C. B. 1997. Negotiation Ethics: How to be Deceptive Without Being Dishonest/How to be Assertive Without Being Offensive. South Texas Law Review 38: 713-734.
Craver, C. B. 2010. The Inherent Tension Between Value Creation And Value Claiming During Bargaining Interactions. Cardozo Journal of Conflict Resolution 12: 1-17.
Craver, C. B. 2012. Effective Legal Negotiation and Settlement, 7th edn. New York: Routledge.
Dawson, R. 2014. Secrets of Power Negotiation. Wayne, NJ: Career Press.
Dingwall, R. and C. Menkel-Meadow. 2006. The Last Plane Out… In The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, edited by A. K. Schneider and C. Honeyman. Washington, DC: ABA Section of Dispute Resolution.
Ebner, N., A. D. Bhappu, J. G. Brown, K. K. Kovach and A. K. Schneider. 2009. You’ve Got Agreement: Negoti@ting Via Email. Hamline Journal of Public Law and Policy 31: 427-458.
Fisher, R., E. Kopelman and A. K. Schneider. 1994. Beyond Machiavelli: Tools for Coping with Conflict. New York: Penguin Books.
Fisher, R., W. Ury and B. Patton. 2011. Getting to Yes: Negotiating Agreement Without Giving In, 3rd edn. New York: Penguin Books.
Friedman, R., C. Anderson, J. Brett, M. Olekalns, N. Goates and C. Lisco. 2004. The Positive and Negative Effects of Anger on Dispute Resolution: Evidence from Electronically Mediated Disputes. Journal of Applied Psychology 89(2): 369-376.
Friedman, G. and J. Himmelstein. 2008. Challenging Conflict: Mediation Through Understanding. Chicago, IL: ABA.
Hanh, T. N. 2013. The Art of Communicating. New York: Harper One.
Jones, E. and R. Nisbett. 1976. The Actor and the Observer: Divergent Perceptions of Causality. In Contemporary Topics in Social Psychology, edited by J. Thibaut, J. Spence and R. Cason. Morristown, NJ: General Learning Press.
Knowles, E. and J. Linn. 2004. Resistance and Persuasion. Mahwah, NJ: Lawrence Erlbaum Associates.
Korobkin, R. 2000. A Positive Theory of Legal Negotiation. Georgetown Law Journal 88: 1789-1831.
Korobkin, R. 2008. Against Integrative Bargaining. Case Western Reserve Law Review 58: 1323-1342.
Lax, D. A. and J. K. Sebenius. 1986. The Manager as Negotiator. New York: The Free Press.
Macfarlane, J. 2004. Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project. Journal of Dispute Resolution 2004: 179-227.
Maynard-Moody, S. and M. Musheno. 2003. Cops, Teachers, and Counselors: Stories from the Front Lines of Public Service. Ann Arbor, MI: University of Michigan Press.
Mehrabian, A. and M. Weiner. 1967. Decoding of Inconsistent Communications. Journal of Personality and Social Psychology 6(1): 109-114.
Menkel-Meadow, C. 1984. Toward Another View of Legal Negotiation: The Structure of Problem Solving. UCLA Law Review 31: 754- 842.
Menkel-Meadow, C., A. K. Schneider and L. Love. 2014. Negotiation: Processes for Problem-Solving, 2nd edn. New York: Aspen.
Merriam-Webster. 2016. Dilemma. Available online at http://www.merriam-webster.com/dictionary/dilemma (last accessed July 22, 2016).
Miller, G. and J. A. Holstein. 1996. Dispute Domains: Organizational Contexts and Dispute Processing. Sociological Quarterly 36(1): 37-59.
Mnookin, R., S. Peppet and A. Tulumello. 2000. Beyond Winning: Negotiating to Create Value in Deals and Disputes. Cambridge, MA: Belknap Press.
Neal, M. and M Bazerman. 1983. The Role of Perspective-taking Ability in Negotiating Under Different Forms of Arbitration. Industrial and Labor Relations Review 36(3): 378-88.
Nelken, M. L. 2007. Negotiation: Theory and Practice, 2nd edn. Danvers, MA: Mathew Bender & Company.
O’Keefe, D. J. 1999. How to Handle Opposing Arguments in Persuasive Messages: A Meta-Analytic Review of the Effects of One-Sided and Two-Sided Messages. In Communications Yearbook, Vol. 22 edited by M. E. Roloff. New York: Routledge.
Peppet, S. R. and M. L. Moffitt. 2006. Learning How to Learn to Negotiate. In The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, edited by A. K. Schneider and C. Honeyman. Washington, DC: ABA Section of Dispute Resolution.
Plerhoples, A. E. 2015. Risk, Goals, and Pictographs: Lawyering to the Social Entrepreneur. Lewis and Clark Law Review 19: 301-324.
Purdy, M. W. 2000. Listening, Culture and Structures of Consciousness: Ways of Studying Listening. International Journal of Listening 14(1): 47-68.
Rau, A., E. Sherman and S. Peppet. 2006. Negotiation, 3rd edn. Eagan, MN: Foundation Press.
Rogers, C. 1961. On Becoming a Person: A Therapist’s View of Psychotherapy. New York: Houghton Mifflin.
Roskos-Ewoldsen, D., D. Bichsel and K. Hoffman. 2002. The Influence of Accessibility of Source Liability on Persuasion. Journal of Experiential Social Psychology 38(2): 137-143.
Ross, L. 1997. The Intuitive Psychologist and His Shortcomings: Distortions in the Attribution Process. In Advances in Experimental Social Psychology Vol. 10, edited by L. Berkowitz. New York: Academic Press.
Sanchez, V. A. 2003. Back to the Future of ADR: Negotiating Justice and Human Needs. Ohio State Journal on Dispute Resolution 18: 669-775.
Schneider, A. K. 2002. Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style. Harvard Negotiation Law Review 7: 143-233.
Schneider, A. K. 2012. Teaching A New Negotiation Skills Paradigm. Washington University Journal of Law and Policy 39: 13-38.
Schneider, A. K. and J. B. Brown. 2013. Negotiation Barometry: A Dynamic Measure of Conflict Management Style. Ohio State Journal on Dispute Resolution 28: 557-580.
Shell, G. R. 1999. Bargaining for Advantage: Negotiation Strategies for Reasonable People. New York: Penguin Books.
Stone, D., B. Patton and S. Heen. 2010. Difficult Conversations: How to Discuss What Matters Most, 2nd edn. New York: Penguin Books.
Ury, W. 1991. Getting Past No: Negotiating in Difficult Situations. New York: Bantam Press.
Wetlaufer, G. B. 1996. The Limits of Integrative Bargaining. Georgetown Law Journal 85: 369-394.
Williams, G. R. 1983. Legal Negotiation and Settlement. Eagen, MN: West, Publishing.
Williams, G. R. and C. B. Craver. 2007. Legal Negotiating, 2nd edn. Eagen, MN: West Publishing.