Distributive Bargaining

Front 1

Three main things about distributive bargaining

Back 1

-definition and principles of the negotiation dance
-types of issues it works best for
-comparison of cooperative/competitive negotiators

Front 2

what are DB and the negotiation dance?

Back 2

1. Distributive bargaining and the negotiation dance is when positions are taken and the parties go back and forth until they settle in the middle.
2. Based on the principle that there’s a fixed pie; anything that one party gets is something taken away from another party)
3. The dance: the concessions. Each one is half as much as the one before and takes twice the time.

Front 3

Ways around the negotiation dance?

Back 3

1. Why not just say “let’s just split the difference?”
a) As a mediator, you’re being too suggestive
b) The parties may not have the authority
c) You may know it will end up there, but they need to see for themselves. It needs to be their agreement.
d) Sometimes the offers are not reasonable. they have to be reasonable or the split doesn’t work.
2. Protecting against the dance/competitive negotiators
a) Farmer’s Four Step Theory (random farmer’s idea, but consistently the best results)
(1) Start cooperatively
(2) Retaliate immediately
(3) Forgive
(4) Be clear (about what is fair or not. don’t let people walk on you.)
b) If you can see there’s a competitive and a cooperative party, call a caucus and help them realize the situation they’re in. Maintain neutrality. Maybe just call a caucus and say “how are you feeling?”

Front 4

Type of issue that DB works best for?

Back 4

Simple unilateral issues: whne it's just about money.

Front 5

How many coop./aggress. negotiators are there?

Back 5

63% coop
20% aggressive
17% other

Front 6

Shared traits of C/A negotiators

Back 6

a) prepared, honest/ethical, observe customs and courtesies of the bar, perceptive/skillful in reading cures, satisfaction in using legal skills, realistic/reasonable/rational/analytical, convincing, effective trial lawyer, self-controlled

Front 7

Effectiveness of the approaches

Back 7

(1) Cooperative Approach: 43% effective, Aggressive has 15%, Other has 29%
(2) Cooperative Approach: 44% average, Aggressive has 40%, Other has 47%
(3) Cooperative Approach: 13% ineffective, Aggressive has 45%, Other has 24%

Front 8

Goals of Cooperative vs. Aggressive negotiators

Back 8

(1) Cooperative: conduct ethically, maximize settlement to client and get a fair settlement
(2) Aggressive: maximize outcome, be the winner, get a large fee

Front 9

Combinations of C/A negotiators and predicted outcomes

Back 9

1. Cooperative v. Cooperative
a) Shared assumptions and objectives
b) Highest likelihood of mutually acceptable agreement
c) Most efficient (least time, cost, most joint gains)
2. Aggressive v. Aggressive
a) Less efficient (more posturing, fewer disclosures, less reasonable offers and demands, less movement during concession-making, fewer joint gains)
b) But they do have shared assumptions and objectives
c) There is a lower probability of agreement (trial rate double that of first group)
3. Cooperative v. Aggressive
a) Conflicting assumptions and objectives
b) The aggressive appears more skillful than the cooperative
c) Lowest possibility of agreement
d) Each side brings out the worst in the other

Front 10

Power imbalance, things that create it and issues

Back 10

1. Things that might create it:
a) one aggressive party and one cooperative party
b) one party has an attorney and one doesn’t
c) gender or abuse or age
d) knowledge or intellect, social status
2. Should you step in? How could you step in?
a) Do a reality check, ask about other options, ask what they see as the outcomes, ask if they’ve consulted an attorney
b) You can read a statute or give a general overlay (don’t give specific counsel for the specific case)
c) Make them feel safe!