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Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style

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Abstract

This article provides a current look at how lawyers actually negotiate and should serve to shatter the myth that adversarial bargaining is more effective and less risky than problem-solving. The data reported herein is based on a wide-ranging study that asked lawyers to evaluate the negotiation styles and the resulting effectiveness of other lawyers. First, the study shows that effective negotiators exhibit certain identifiable skills. For example, the research indicates that a negotiator who is assertive and empathetic is perceived as more effective. The study also reveals distinctive characteristics of ineffective negotiators, who are more likely to be stubborn, arrogant, and egotistical. Furthermore, when this adversarial negotiator is unethical, he is perceived as even less effective. Third, the study found that problem-solving behavior is perceived as highly effective. This information should help focus negotiation training toward the task of learning these new skills or modifying ineffective habits.
Electronic copy available at: http://ssrn.com/abstract=1022131
Electronic copy available at: http://ssrn.com/abstract=1022131
... We examine an existing dataset originally collected as part of a prior study of attorney negotiating style (Schneider, 2002). Schneider set out to update on an earlier study on individual differences and effectiveness (Williams, 1983) to understand changes in the legal profession and in the legal education. ...
... Schneider set out to update on an earlier study on individual differences and effectiveness (Williams, 1983) to understand changes in the legal profession and in the legal education. Schneider (2002) mailed out surveys to 2500 lawyers in the Milwaukee and Chicago areas from randomly generated lists of 1000 and 1500 attorneys belonging to the Wisconsin State Bar and the Chicago Bar Association, respectively. The administration of the surveys ensured anonymous responses and was executed in three phases: a letter introducing the survey and encouraging participation was sent two weeks prior to the survey, followed by the mailing of the survey itself with a cover letter asking for participation, and concluded with a reminder post card two weeks afterwards. ...
... The second section included 63 semantic differential scales that described the counterpart's negotiation behaviors that Schneider (2002) labeled "bipolar pairs" because they were polar opposite choices on which each counterpart was rated. Schneider added five scales based on the literature describing problem-solving behavior; an example item is "Prepared vs. unprepared on factual elements of case". ...
... An implication of prototypical games being adversarial is a strategic, competitive motivation to achieve one's goals and beat opponents. We know from prior work that people who approach negotiation as a chance to win or compete versus collaborate are more likely to engage in competitive negotiation behavior, both ethical and unethical (Williams 1983;Schneider 2000Schneider , 2002Schweitzer, DeChurch, and Gibson 2005;Olekalns and Smith 2007). ...
... An implication of prototypical games being adversarial is a strategic, competitive motivation to achieve one's goals and beat opponents. We know from prior work that people who approach negotiation as a chance to win or compete versus collaborate are more likely to engage in competitive negotiation behavior, both ethical and unethical (Williams 1983;Schneider 2000Schneider , 2002Schweitzer, DeChurch, and Gibson 2005;Olekalns and Smith 2007). ...
... In contrast to Carr's (1968) position, we contend that ethical framing (rather than game framing) is overall beneficial for negotiations and other business dealings. Consistent with our argument, Schneider (2002) surveyed lawyers about the effectiveness of different negotiation styles and found that the single adjective (out of 89 included for study) most closely linked with lawyers' perceptions of effective problem solving was "ethical." Along similar lines, negotiation textbooks, reference books, and popular press books (e.g., Malhotra and Bazerman 2007;Fisher, Ury, and Patton 2011;Brett 2014;Honeyman and Schneider 2017;Shell 2018;Berkel 2020;Lewicki, Barry, and Saunders 2020;Thompson 2020;Rockmann, Langfred, and Cronin 2021) overwhelmingly encourage negotiators to honestly disclose information about their interests and priorities to create value, build trust, and enhance their reputations. ...
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Lawyers have broad discretion in deciding how honestly to behave when negotiating. We propose that lawyers’ choices about whether to disclose information to correct misimpressions by opposing counsel are guided by their moral character and their cognitive framing of negotiation. To investigate this possibility, we surveyed 215 lawyers from across the United States, examining the degree to which honest disclosure is associated with lawyers’ moral character and their tendency to frame negotiation in game‐like terms—a construal of negotiation that we label game framing. We hypothesize that the more that lawyers view negotiation through a game frame—that is, the more they view negotiation as an adversarial context with arbitrary and artificial rules—the less honest they will be in situations in which honest disclosure is not mandated by professional rules of conduct. We further hypothesize that lawyers with higher levels of moral character will apply a game frame to negotiation to a lesser degree than will lawyers with lower levels of moral character, and that honesty when negotiating will be higher when lawyers have higher versus lower levels of moral character. Our study results support these hypotheses. This work suggests that focusing on game‐like aspects of negotiation can induce a less moral and ethical mindset. To the extent that teaching law students to “think like a lawyer” encourages them to adopt a game frame of negotiation, we can expect such training to reduce the likelihood of honest disclosure.
... However, they tend to dread encounters with competitive adversaries (Craver, 2003). Schneider (2002) found that 60% of the adversarial bargainers were considered ineffective, while 75% of the problem-solving negotiators were considered effective. Adversarial bargainers who belittled, antagonized or conceived were more concerned with themselves than with their clients; meanwhile, problem-solving negotiators were able to balance assertiveness and empathy, "enlarging the pie" through creativity and flexibility, and understanding the other side through listening and perceptiveness. ...
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Negotiation is the main mean of conflict resolution. Despite its capital importance, little is known about influencing variables or effective interventions. Mindfulness has shown to improve subjects’ performance in different settings but until now, no study has shown its impact in negotiation. The aim of this study is to analyze which variables are associated with effectiveness and to determine if meditators are more effective in negotiation. A cross-sectional descriptive study was carried out. The study variables were: socio-demographic variables, negotiation effectiveness (Negotiation Effectiveness Questionnaire), mindfulness (Five Facets of Mindfulness Questionnaire), emotional intelligence (Trait Meta-Mood Scale Questionnaire), personality (NEO-FFI personality inventory), motivation (McClelland Questionnaire), and negotiation style (Rahim Organizational Conflict Inventory-II). A correlational study and a multivariate model were developed. Negotiation effectiveness was associated with age, mindfulness, emotional intelligence, extraversion, openness, conscientiousness, achievement motivation, integrating, dominating, and compromising negotiation styles and inversely correlated toward neuroticism. The effectiveness of the negotiation is explained by the variables clarity, age, conscientiousness, dominating, and compromising style. Meditators were found to be more effective than non-meditators.
... Interactions devoid of threats and coercive power are more likely to result in integrative solutions and carry out mutually beneficial tradeoffs (Deutsch, 1973;Tjosvold, 1998), which enhances negotiators' ability to create value (Galinsky et al., 2008). In contrast, negative interactions are largely ineffective in creating value for clients (e.g., Schneider, 2002) because hostile or uncooperative tactics lead rivals away from economically rational behavior, thereby harming performance (Kilduff, Elfenbein, and Staw, 2010). Establishing loyalty via uncooperative compensatory behaviors toward rivals can therefore come at the expense of productive interactions that maximize joint outcomes. ...
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Social embeddedness research has suggested that a history of collaboration between rivals should facilitate cooperation and prevent conflict. In contrast, the present study explores how a history of collaboration between people who subsequently become rivals can exacerbate conflict rather than facilitate future collaboration when salient others may expect them to be antagonistic. We develop this argument for a general set of relationships in which agents who previously collaborated become rivals while representing contesting principals. These agents may be perceived by the principals they represent as having compromised loyalties. This is especially likely when the principals whom the agents represent compete intensely or have previously been in conflict. To mitigate principals’ loyalty concerns, agents engage in compensatory behaviors meant to demonstrate social and psychological distance from former collaborators and now-rivals. Paradoxically, these behaviors transform a history of collaboration into a catalyst for conflict. Our empirical analyses are based on the professional histories of more than 20,000 external legal counsel representing corporate clients in intellectual property lawsuits filed from 2000 to 2015. Results reveal that lawyers engage in uncooperative behaviors in court to distance themselves from opposing lawyers who are former collaborators. These dynamics are associated with longer, more contentious litigation and lost economic value for clients, as evidenced by an analysis of companies’ abnormal stock market returns upon the termination of a lawsuit. Our research thus sheds lights on a mechanism by which past collaboration can undermine future collaboration and carries potential implications for research on social structures and for work on the interplay of structure and evaluative dynamics.
... Not only have these lawyers always been in the majority, they achieve better substantive results. 128 ...
Article
The Family Law Education Reform Project (the FLER Project) is co-sponsored by the Association of Family and Conciliation Courts and the Center for Children, Families and the Law at Hofstra Law School. This Final Report is based on a series of dialogues between family law academics and practitioners from many disciplines, a FLER Project survey, and research conducted by law students at Hofstra University and Northeastern University.
... Questo genere di stile negoziale competitivo, anche quando non aggressivo, è in particolare più diffuso negli avvocati meno esperti, i quali basano la propria strategia professionale esclusivamente su un'approfondita conoscenza del diritto, facendo ricorso a "spirali di aggressione" 13 . I negoziatori più esperti ed efficaci cercano invece di esplorare gli interessi comuni in maniera assertiva ma empatica 14 . Sviluppare competenze di comunicazione ed empatia nella negoziazione giuridica è dunque una priorità attuale. ...
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Negotiating skills are not part of the traditional lawyer's training. Today, however, new problem-solving skills are required of the lawyer to settle disputes consensually before trial. This article outlines the methodology for a pilot study that investigates the cooperative problem-solving skills development through neuroscientific devices that are non-invasive, portable and therefore usable in ecological contexts. The use of Brain-Computer-Interface would allow trained negotiators to explicitly develop neuro-cognitive tools, with greater interaction between intuitive and analytical thinking systems.
... As explained above, according to an interest based negotiation methodology, the model this texts subscribes to, the foremost priority of professional negotiators should be to turn agreement centred approaches to negotiation, into discovery and engagement experiences where the goal could shift towards reaching a common understanding. Experience has demonstrated that outcomes based on these type of processes will likely be satisfactory to everyone involved (Schneider, 2002), regardless of how they are fashioned: a contract, a pre-contractual pact, or partial/preliminary agreement, etc. This may be achieved in a non-intrusive manner, using technical and interactive tools in as much as possible and admitting that mediatizing technology cannot be expected to transform conflicts per se but humans are responsible for this; on their own or assisted by "transactional brokers" -mediators-committed to the process, and willing to put their competence to its service. 2 Innovative technical solutions may have a positive impact on relationships, in as much as they could be proven to temper positional attitudes and distract from resentment, distrust and other disturbing obstacles. ...
Chapter
Negotiating skills are not part of the traditional lawyer’s training. Today, however, advanced skills are required of the lawyer to settle disputes consensually before trial. Cognitive, psycho-social and communication aspects should be trained in a purposed way. Cognitive knowledge and brain technology may be combined to develop targeted empowering programs during negotiation training. This article outlines the methodology for a pilot study that investigates the cooperative problem-solving skills development through neuroscientific devices that are non-invasive, portable and therefore usable in ecological contexts. The use of Brain-Computer-Interface would allow trained negotiators to explicitly develop mind tools and skills, with greater interaction between intuitive and analytical thinking systems.
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Family law is evolving towards non-adversarial dispute resolution processes. As a result, some family lawyers are representing clients who are trying to reach settlements that recognize their interests, instead of just pursuing their legal rights. By responding to the full spectrum of client needs, lawyers are required to behave differently than they do when they are representing a client in a traditional civil litigation file. They consider the emotional and financial consequences of relationship breakdown – things that are not typically within the purview of the family law lawyer. They objectively reality check with their clients, and they approach interest-based negotiations in a client-centric way. These lawyers view their role as that of a non-adversarial advocate, and their clients as whole people with interests that are not just legal. This paper draws on an empirical study involving focus groups with family law lawyers, to argue that the Federation of Law Societies of Canada’sModel Code of Professional Conductneeds to be updated to incorporate non-adversarial advocacy. The lawyers in the study viewed non-adversarial advocacy as being responsive to client needs, and in the interest of clients’ children. This paper draws from the study to establish what constitutes non-adversarial advocacy and then it presents a proposal for revising Rule 5 (Advocacy) of the Model Code.
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Resumen: La noción de “Resolución Alternativa de Disputas”, generalmente conocida como “ADR”, ha recibido una importante acogida por parte de la literatura del common law y lo mismo puede decirse en cuanto sus principales categorías (negociación, mediación y arbitraje). ADR, lato sensu, se refiere a la idea de utilizar toda una gran variedad de mecanismos no jurisdiccionales destinados a pre­venir, manejar, resolver o solucionar conflictos intersubjetivos. De modo que la expresión resolución alternativa de disputas es, en cierta manera, insuficiente para suministrar una visión integral de todas las opciones (o alternativas) disponibles. Este artículo reexamina la noción de ADR y proporciona una novedosa visión del pasado, presente y futuro de esta relativamente nueva disciplina.Palabras clave: ADR, resolución alternativa de disputas, acceso a la justicia.Abstract: The notion of “Alternative Dispute Resolution”, commonly known as “ADR”, has re­ceived considerable attention in common law literature, and the same can be said about the main ADR categories (negotiation, mediation and arbitration). ADR, lato sensu, refers to the idea of utilising a wide variety of non-jurisdictional mechanisms that are intended to prevent, manage, resolve or settle disputes. Thus, the expression alternative dispute resolution is, somewhat, technically insufficient to account for the whole range of options (or alternatives) available. This article re-examines the notion of ADR and provides a novel insight into the past, present and future of this relatively new discipline.Keywords: ADR, alternative dispute resolution, access to justice.
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