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  • Negotiation & ADR
  • Inside the
  • Heads
  • of my
  • Negotiation
  • Students
  • By
  • John Barkai
  • Negotiation & ADR
  • are
  • Professional
  • and
  • Personal
  • Skills
  • Handling of Problems
  • designed by Liu Young
  • Western - American
  • Asian

www2.hawaii.edu/~barkai

  • Google: John Barkai

www2.hawaii.edu/~barkai

  • Google: John Barkai
  • Dragon Naturally Speaking “Premium” edition - $145 Amazon
  • Academic pricing $100
  • Various microphone options
  • Not everyone can be a great chef
  • Not everyone can be a great chef
  • But, everyone can learn to cook

“Even a sheet of paper has two sides”

  • Japanese Proverb

“Every coin has two sides”

  • Proverb

Perspective

  • View
  • I’ve got it again Larry. An eerie feeling
  • like there is something on top of the bed.
  • "Then it's agreed. Watson, Smith, Teller, and Wilson go to Heaven; Jones, Paducci, and Horner go to Hell; and Fenton and Miller go to arbitration.

This course will ….

My girl friend is like a changed woman

  • My girl friend is like a changed woman
  • After taking this course

My girl friend is like a changed woman

  • My girl friend is like a changed woman
  • (because she thinks I'm a changed man)
  • After taking this course

Common Forms of Dispute Resolutions

  • Negotiation:
    • Discussion for the purpose of settling differences.
  • Mediation - Conciliation:
    • A neutral third party assists the parties to reach a negotiated settlement but has no power to decide the issues in dispute.
  • Arbitration:
    • A neutral third party is given the power to decide the issues in conflict. The arbitrator decides after hearing arguments and reviewing evidence.
  • Trial in Court:
    • Evidence is presented to a judge or jury for a decision under formal rules of law and procedure

ADR

  • Alternative
  • Dispute
  • Resolution

HOW DO YOU SAY “ADR”?

  • Country / Language
  • Negotiation
  • Mediation
  • Cambodia
  • Ka cho cha
  • Agna Kandal
  • Hong Kong
  • Tam Pun
  • Tin Teng
  • India Hindi
  • Oriya
  • Samvad
  • Muleiba
  • Madhyastha
  • Madhyasti
  • Indonesia
  • Negosiasi
  • Penengah
  • Japan
  • Kosho
  • Chotei
  • Korea
  • Hyoepsang
  • Joongjae
  • Malaysia
  • Rundingan
  • Perantaraan
  • Pohnpei Micronesia
  • Paronogorong pene
  • Kamwahu
  • Philippines
  • Negosasyan
  • - Tawad (bargain)
  • Pagbatiin
  • China
  • Tan Pan
  • Tiao Jie
  • Singapore
  • English or Mandarin
  • English or Mandarin
  • Sri Lanka
  • Samuthiya
  • Samatha Mandalaya
  • Taiwan
  • Tam Pan
  • Tawa Shay
  • Thailand
  • Jeraja
  • Klaiklea
  • Vietnam
  • Dam Phan
  • Hoa Giai
  • Compiles by Professor John Barkai and students from the University of Hawaii’s JEMBA Program (Japan Focused Executive MBA) and JAIMS’ (Japan American Institute for
  • Management Science) Intercultural Negotiations class.
  • How many lawsuits are filed in the U.S. each year? Guess!

Over 106 Million Cases Filed in Federal and State Courts in 2010 Source: Examining the Work of State Courts, 2010

  • http://www.ncsconline.org/d_research/csp/CSP_Main_Page.html
  • A 2% decrease over prior year

104 Million State Court Cases 2 Million Federal Court Cases

104 Million U.S. State Court Cases 56 Traffic 20 Criminal 19 Civil 6 Domestic 2 Juvenile Source: Examining the Work of State Courts, 2010

Hawaii Civil Cases 7,013 Filed 4,007 Terminated Circuit Court 2011-2012

How many jury trials? Guess!

15 Jury Trials 53 Non-Jury Trials Circuit Court Civil Cases in Hawaii 2011-2012

Jury Trials 1 Contract Trials 12 Tort Trials 3 Other” Trials Circuit Court Civil Cases in Hawaii 2011-2012

  • 15
  • 2012
  • 6
  • 2011
  • 14
  • 2010
  • 12
  • 2009
  • 17
  • 2008
  • 12
  • 2007
  • 10
  • 2006
  • 16
  • 2005
  • Hawaii Court Statistics

161 Jury Trials 58 Non-Jury Trials Circuit Court Criminal Cases in Hawaii 2011-2012

5 % Criminal cases are terminated in Hawaii by jury trial

0.4 % Circuit Court Civil Cases terminated in Hawaii by jury trial 2011-2012

3% Jury Trials in U.S.

161 Jury Trials 58 Non-Jury Trials Circuit Court Criminal Cases in Hawaii 2011-2012

  • Of 3575 cases terminated – 4.5% by Jury; 1.6% Non-jury

> 5 % Criminal cases are terminated in Hawaii by jury trial

Trial Rates: 0.8% District Court 13% Small Claims 2010-2011

3% Jury Trials in U.S.

  • Vanishing Trials – Federal Court – 1962-2002
  • 12% to 2%
  • Vanishing Trials – Hawaii Circuit Court – 1964-2010
  • Hawaii Circuit Court – 1978-2010

What is the appropriate amount of Conflict?

  • Conflict
  • Conflict
  • Conflict
  • Conflict

In one of our concert grand pianos, 243 taut strings exert a pull of 40,000 pounds on an iron frame. It is proof that out of great tension may come great harmony.

  • Theodore E. Steinway

CONFLICT IS LIKE WATER:   Too much causes damage to people and property   Too little creates a dry, barren landscape devoid of life and color.    - Designing Conflict Management Systems - Cathy Costantino & Christina Sickles Merchant

All polishing is achieved by friction - Mary Parker Follett

  • Who has the Power?
  • Information is Power
  • The easiest way to improve your negotiation skills is to
  • A__
  • M___
  • Q________!
  • Ask
  • More
  • Questions
  • Expand the pie
  • Two Key Ideas
  • about Negotiation & ADR
  • 1) Focus on Interests
        • not positions
  • 2) Improve the
        • Communication
        • (information & temperature)
  • Positions
  • Interests
  • Positions
  • WHAT?
  • Proposed Solutions
  • Interests
  • WHY?
  • Are WHY you want
  • the positions
  • Mommy
  • Daddy
  • (oranges)
  • Juice
  • Rinds
  • Some Common Interests We Have
  • Acceptance
  • Fulfilment
  • Accountability
  • Independence
  • Achievement
  • Knowledge
  • Acknowledgment
  • Love
  • Affection
  • Nurturance
  • Appreciation
  • Opportunity for Input
  • Autonomy
  • Privacy
  • Belonging
  • Recognition
  • Clarity
  • Responsibility
  • Commitment
  • Respect
  • Competency
  • Relaxation
  • Consistency
  • Satisfaction
  • Efficiency
  • Safety
  • Fairness
  • Security
  • Freedom from Fear
  • Trust
  • Understanding
  • Validation

Interests Goals Needs Dreams Desires

  • Same bed, different dreams
  • Iceberg Theory
  • “Below the line” issues
  • Huge & invisible
  • Purposely hidden
  • Out of awareness
  • Advantages and Disadvantages
  • of Cooperation and Competition
  • “And notice, gentlemen, this year’s model
  • has twenty per cent more trunk space.”
  • You can't always get what you want
  • but if you try
  • sometimes you might find
  • you get what you need
  • The Rolling Stones
  • U.S. Declaration of Independence
  • 53 CA
  • 32 TX
  • 29 NY
  • 1
  • AL DE MT
  • ND SD VT WY
  • Constitution
  • The following matters are agreed between the parties:
    • - the full exercise of Egyptian sovereignty
    • - the withdrawal of Israeli armed forces from the Sinai;
    • - the use of airfields …for civilian purposes only, and
  • - stationing of Forces
  • No more than one division of Egyptian armed forces [permitted]
  • Only United Nations forces and civil police equipped with light weapons to perform normal police functions will be stationed within an area lying west of the international border and the Gulf of Aqaba, varying in width from 20 km. (12 miles) to 40 km. (24 miles).
  • [limited border armed forces]
  • The Camp David Accords
  • September, 1978
  • Framework for the Conclusion of a Peace Treaty between Egypt and Israel
  • For the Government of the Arab Republic of Egypt:
  • Muhammed Anwar al-Sadat
  • For the Government of Israel:
  • Menachem Begin
  • Witnessed by:
  • Jimmy Carter,
  • President of the United States of America
  • The Camp David Accords
  • GETTING TO YES
  • Separate People from Problem
  • Interests not Positions
  • Invent Options
  • Objective Criteria
  • BATNA
  • http://mediationadvocacy.com/Getting%20to%20Yes.pdf
  • BATNA
  • Best
  • Alternative
  • To a
  • Negotiated
  • Agreement
  • YOUR BATNA TELLS YOU
  • WHEN TO WALK
  • NOT WHEN TO SIGN
  • Tolanski Curve Illusion
  • Conflicting Interests

Examples of Complementary Interests

  • One party might care more about:
  • Other party might care more about:
  • Form, appearance
  • Substance

Examples of Complementary Interests

  • One party might care more about:
  • Other party might care more about:
  • Form, appearance
  • Substance
  • Political considerations

Examples of Complementary Interests

  • One party might care more about:
  • Other party might care more about:
  • Form, appearance
  • Substance
  • Economic considerations
  • Political considerations
  • External considerations
  • Internal considerations

Examples of Complementary Interests

  • One party might care more about:
  • Other party might care more about:
  • Form, appearance
  • Substance
  • Economic considerations
  • Political considerations
  • External considerations
  • Internal considerations
  • Immediate future

Examples of Complementary Interests

  • One party might care more about:
  • Other party might care more about:
  • Form, appearance
  • Substance
  • Economic considerations
  • Political considerations
  • External considerations
  • Internal considerations
  • Immediate future
  • More distant future
  • Tangible results

Examples of Complementary Interests

  • One party might care more about:
  • Other party might care more about:
  • Form, appearance
  • Substance
  • Economic considerations
  • Political considerations
  • External considerations
  • Internal considerations
  • Immediate future
  • More distant future
  • Tangible results
  • The relationship
  • Progress, change
  • Respect for tradition

Examples of Complementary Interests

  • One party might care more about:
  • Other party might care more about:
  • Form, appearance
  • Substance
  • Economic considerations
  • Political considerations
  • External considerations
  • Internal considerations
  • Immediate future
  • More distant future
  • Tangible results
  • The relationship
  • Progress, change
  • Respect for tradition
  • Precedent
  • This case

Cuban Missile Crisis 1962

  • OK Mr. President, let’s talk.
  • 1962. The U.S. placed nuclear missiles in the U.K., Italy, and Turkey with the capability to strike Moscow.
  • The Soviet Union began to build missiles bases in Cuba for ballistic nuclear missiles with the ability to strike most of the continental United States.
  • The U.S. is considering the following options: pressure diplomatically the Soviet Union to remove the missiles, attack the missile bases by air, set up a naval blockade of Cuba, invade Cuba. Cuba and the Soviet Union, who supplied the missiles, claim that Cuba has a right to protect itself from a potential U.S. attack.
  • A. Positions B. Possible interests
  • Cuban Missile Crisis

Cuban Missile Crisis Positions

  • U.S.
  • No
  • missiles in Cuba.
  • Soviet Union
  • Yes
  • Missiles can be
  • in Cuba.

Cuban Missile Crisis Possible Interests

  • U.S.
  • - Security
  • - protect the U.S. from easy, “first strike” missile attack
  • prevent the Soviet Union from placing nuclear weapons close to the U.S.
  • -maintain image as a world superpower
  • Soviet Union
  • -prevent U.S. attack of Soviet Union
  • prevent U.S. invasion of Cuba
  • support other Communist nations,
  • maintain image as a world power

Cuban Missiles Resolution

  • Publicly, the Soviets dismantled their offensive weapons in Cuba and return them to the Soviet Union, subject to UN verification, in exchange for a U.S. public declaration and agreement to never invade Cuba.
  • Secretly, the U.S. agreed that it would dismantle all U.S.-built Thor and Jupiter IRBMs deployed in Europe and Turkey.
  • Power Imbalances

Smart Bargaining: Doing Business with the Japanese Graham & Sano

  • Japan External Trade Organization's (JETRO)
  • Sengoku period battle
  • 15th century warring states period in Japan

Nakanunara, koroshiteshimae, hototogisu (If the cuckoo does not sing, kill it.) –by Nobunaga Oda – (ruthless) Nakanunara, nakashitemiseyou, hototogisu (If the cuckoo does not sing, coax it.) –by Hideyoshi Toyotomi – (creative) Nakanunara, nakumadematou, hototogisu (If the cuckoo does not sing, wait for it.) –by Leyasu Tokugawa–(patient)

  • Cuckoo Strategies

36 Chinese Strategies

  • Applied to Negotiations

PREPARING AND PLANNING

If I had six hours to chop down a tree, I'd spend the first hour sharpening the ax.

  • Abraham Lincoln
  • Planning on roaming the neighborhood with your buddies again?
  • Planning
  • Sengoku period battle
  • 15th century warring states period in Japan
  • Cuckoo Strategies

Nakanunara, koroshiteshimae, hototogisu (If the cuckoo does not sing, kill it.) –by Nobunaga Oda – (ruthless) Nakanunara, nakashitemiseyou, hototogisu (If the cuckoo does not sing, coax it.) –by Hideyoshi Toyotomi – (creative) Nakanunara, nakumadematou, hototogisu (If the cuckoo does not sing, wait for it.) –by Leyasu Tokugawa–(patient)

  • Cuckoo Strategies

They would never reveal every fact, because successful negotiation does not hinge on full disclosure.

  • 1 minute audio clip

Distributive Negotiation

    • Competitive
    • Win-Lose
    • Zero-Sum
      • The Pie
    • Buyers = as low as possible
    • Sellers = as high as possible
    • Long term relationship not important
    • Claiming as much value as possible in the negotiation

Integrative Negotiation

    • Cooperative
    • Win-Win
    • Expanding the possibilities
      • The Pie
    • Buyers and Sellers work together to get more
    • Long term relationship is important
      • The value of the relationship
    • Creating Value in negotiation

Positive Bargaining Zone

  • Buyer’s Bargaining Range
  • $5
  • $10
  • $15
  • $20
  • Positive Bargaining Zone
  • BT, Buyer’s Target Point
  • SR, Seller’s Resistance Point
  • BR, Buyer’s Resistance Point
  • ST, Seller’s Target Point

Negative Bargaining Zone

  • Seller’s Bargaining Range
  • Buyer’s Bargaining Range
  • $5
  • $10
  • $15
  • $20
  • Negative Bargaining Zone
  • BT, Buyer’s Target Point
  • BR, Buyer’s Resistance Point
  • SR, Seller’s Resistance Point
  • ST, Seller’s Target Point
  • Sally
  • Swansong

101 Ways to get a bigger piece of the Pie

  • It is not (always, or even often) about the money

BEFORE THE NEGOTIATION

  • Prepare. Prepare. Prepare.
  • Know your BATNA
  • Focus on interests, not positions
  • Know your interests
  • Prioritize your interests
  • Improve your BATNA before the negotiation starts
  • Improve your BATNA during the negotiation

BEFORE THE NEGOTIATION

  • Set a high goal for yourself
  • Estimate their BATNA
  • Estimate their interests
  • Estimate the ZOPA (zone of possible agreement)
  • Talk with others who have negotiated with them

AT THE TABLE 1

  • Develop a relationship before talking money
  • Recognize their negotiating style
  • Don't narrow your negotiations to one issue
  • Don't quickly accept the first offer
  • even if you think it's fair.
  • If you agree in haste, you may repent at leisure
  • Ask lots and lots of questions
  • Active listen
  • Reframe negative statements

AT THE TABLE 2

  • Pace them
  • Make the first offer to anchor (if you have enough info)
  • Start with an extreme, but not outrageous offer
  • If they make the first offer, ignore any extreme offer and anchor your offer in a favorable position
  • Justify all offers and concessions

AT THE TABLE 3

  • Take a seat to your advantage (not detriment)
  • Wait for TOP to finish before responding
  • Hint at, or disclose your BATNA, to improve their offer
  • Mislead them about your BATNA
  • Determine their interests
  • Ask. Estimate based upon available info. Assume and ask Qs to confirm
  • Be willing to make the first concession
  • Don't make multiple, unilateral concessions
  • Concede slowly
  • Concede in small steps
  • Make you concessions 1/2 of what you would naturally do

AT THE TABLE 4

  • "That sounds a little high (low)." - to induce concessions
  • Don't be in a hurry to make the deal
  • Ask for an "extra." Nibble
  • Don't take it personally
  • Frame issues as "gains" for them, not losses
  • Use silence
  • Consider if they have a hidden agenda
  • Keep the emotional temperature low

AT THE TABLE 5

  • Have limited authority
  • Think about the long term
  • Is it worth serious negotiating on this one?
  • Don't appear desperate for the deal
  • Invent options for mutual gain
  • Seek objective criteria
  • Act confident and informed
  • "Split the difference" only when it is to your advantage
  • Flinch

AT THE TABLE 6

  • Offer contingent concessions
  • Don't act like you "won" or you won't next time
  • Don't underestimate your offer
  • Be willing to walk away (at least for a while)
  • Be willing to suggest mediation
  • Make a larger concession than you thought necessary
  • Most psychological principles suggest your offer is too extreme
  • Over optimistic, Selective perception,
  • Do not reject their offer based because of reactive devaluation
  • TIPS
  • FOR NEGOTIATING WITH A COMPETITIVE NEGOTIATOR
  • Flinch.
  • Take time out.
  • Remember your BATNA!
  • Get another opinion.
  • Ask "how" they will negotiate.
      • If they don't know what "win-win" means,
  • they won't be negotiating that way.
  • Avoid multiple concessions
  • if your concessions are
  • not matched by their concessions.
  • Recognize "dirty tricks"
  • and comment on them immediately.
  • TO IMPROVE YOUR NEGOTIATIONS:
  • Think in terms of interests
      • Classify the type of negotiation:
  • Deal or Dispute
  • Distributional or Integrative
  • Expand the pie
  • Use a planning chart
  • Investigate the opposing negotiator
  • Consider both strategy and tactics
  • Set high goals for yourself
  • Practice before you negotiate
  • Determine your BATNA
  • TO IMPROVE YOUR NEGOTIATIONS:
  • Ask lots of questions
      • Separate the people from the problem
  • Generate alternatives by brainstorming
  • Frame your proposals as a gain to them
  • Flinch when you hear a high demand
  • Protect your facts when necessary
  • Be willing to make concessions, but only if they do too
  • TIPS
  • FOR NEGOTIATING WITH A COMPETITIVE NEGOTIATOR
  • Flinch.
  • Take time out.
  • Remember your BATNA!
  • Get another opinion.
  • Ask "how" they will negotiate.
      • If they don't know what "win-win" means,
  • they won't be negotiating that way.
  • Avoid multiple concessions
  • if your concessions are
  • not matched by their concessions.
  • Recognize "dirty tricks"
  • and comment on them immediately.

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