There is, in the extensive literature on negations, much discussion of the concept of "issue linkage." In fact, it gets tossed around a lot without ever getting an explicit definition. But it’s a very helpful concept that arises out of the literature on international relations. And it has its roots in a 1979 article in International Organization by Robert D. Tollison and Thomas D. Willett, An economic theory of mutually advantageous issue linkages in international negotiations. As they wrote:

[B]y linking the two negotiations so that high benefitsgo to A in one area and high benefits

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Years ago, I took part in a mediation for a small consumer class action–not my first, and hardly my last. In that case, the mediator did something unusual, she showed up with homemade chocolate chip cookies. The mediation did not result in a settlement, but it went pretty smoothly. Afterwards, I asked the mediator about the cookie gambit. "I find it tends to promote cooperation," she said. "No one gets too aggressive around homemade cookies."

Was she right? There’s been a lot of research into the phenomenon of priming, the idea that verbal or visual cues can predispose us … Continue Reading

Barbarians at the Gate by business journalists Bryan Burrough and John Helyar is rightly considered a business classic. (It was also made into a hugely entertaining HBO film with James Garner as RJR Nabisco CEO F. Ross Johnson, Jonathan Pryce as buyout specialist Henry Kravis, and future Sen. (and Law & Order DA) Fred Thompson as American Express executive Jim Robinson.) It tells the story of how a group of executives from RJR Nabisco tried (spoiler: unsuccessfully) to buy the entire company in a leveraged buyout. It is an excellent example of business reporting, and an … Continue Reading

 I’ve written before about priming, the tendency of us humans to adopt emotional states if we are exposed to words with emotional content. But there are other psychogical effects that can influence negotiating in unseen, and unwelcome, ways. One of the most common of these is the problem of anchoring.

What is anchoring? As Dan Orr and Chris Guthrie write in their 2006 article Anchoring, Information, Expertise, and Negotiation: New Insights from Meta-Analysis, it’s the tendency of any negotiation of numbers (like the price of a home) to cluster around the first number thrown out. Experiments have … Continue Reading

There is a common perception in complex litigation (not to mention litigation generally) that time favors the defendant. Defendants often counsel clients not to react too quickly: situations that may provoke a fight-or-flight response in the moment often present more strategic opportunities as they unfold. And plaintiffs tend to agree; they often complain that defendants’ primary strategy is just to delay litigation for as long as possible.

But is there any basis for this assumption? After all, there are definite cases–like the motion to strike class allegations, or when plaintiffs try to change their theory late in the litigationContinue Reading

We’ve been talking about negotiations on Wednesdays here for several months now. And while most of that discussion has focused on how to reach principled agreements, even with parties you may not like, there is no denying the fact that sometimes, people lie when negotiating. Or, at the very least, they shade the truth.

This tendency makes sense. To the extent that negotiations are an exchange of information about what agreements will provide the most value to both sides, and to the extent that we all leak information without knowing it, it is just sound strategy to try to … Continue Reading

Harvard Law Professor Robert Mnookin has written a lot about negotiation. Seriously, a lot. His most recent book, Bargaining with the Devil, is about how to negotiate long-standing conflicts with lots of bad blood. Or, as he puts it:

By "bargain" I mean attempt to make a deal–try to resolve the conflict through negotiation–rather than fighting it out. By "Devil," I mean an enemy who has intentionally harmed you in the past or appears willing to harm you in the future. Someone you don’t trust. An adversary whose behavior you may even see as evil.

(Emphasis added.) … Continue Reading

 Last week, I talked about some of the limitations of using Getting to Yes when negotiating class actions. But Getting to Yes has other limitations as well, ones well worth lawyers’ consideration. For example, in his 2003 article: Panacea or Pandora’s Box?: The Costs of Options in Negotiation, Vanderbilt Professor Chris Guthrie takes on the question of just how useful generating new options (or "creating value") can be in negotiation. His answer is that it’s less useful than one might think.

Relying on existing experimental research, new experimental research, and "real-world" empirical evidence, the Article identifies four potential

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Last Friday, Thomson/Reuters reporter Alison Frankel (who should be on every class-action lawyer’s RSS feed) wrote about an example of a new strategy class-action defendants have developed over the past few years. That strategy? Work with the government. In this case, publishers Harper Collins and Hachette–two of the defendants in both the Justice Department’s recent price-fixing complaint and a class action making the same allegations–have settled with 16 state attorneys general. Harper Collins has announced that it plans to settle with the other 34 state AGs as well if possible. Leaving aside the fact that settling with a government … Continue Reading

Anyone who writes or talks about negotiation strategy eventually has to address Getting to Yes.  It’s the 800 pound gorilla in the negotiation field, and it has produced a vocabulary that, while occasionally jargony and unwieldy, is in constant use. Far more importantly, it contains some outstanding advice on how to negotiate in almost any context, even with difficult counterparties.

So, assuming that you’ve never read the book, what’s it about? Getting to Yes advocates a method known as "principled negotiation." As the authors describe it, principled negotiation:

suggests that you look for mutual gains wherever possible,

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