Negotiation: Theory and Strategy (Aspen Casebook) (Aspen Casebook Series)

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Unlike other books that focus on the nuts-and-bolts of the negotiation process, this text’s conceptual approach draws on psychology, cutting-edge scholarship, and law to create an analytical framework with which students can learn to think about negotiation strategy before applying the framework to specific negotiation problems and contexts. Features: Restructured treatment of the psychology of persuasion Part III framed to emphasize the critical importance of the relationship between negotiators Treatment of “trust” expanded with more discussion of extensive experimental data New treatment of the how to deal with the negative emotions that result from conflict Completely new simulations added to reinforce bargaining zone analysis, persuasion techniques, coping with emotions, and principal-agent relationships in negotiation Title Page Copyright Page About Aspen Publishing Dedication Page Contents Preface Acknowledgments PART I: INTRODUCTION Chapter 1: Toward a Conceptual Approach to Negotiation A. The Steps of Negotiation: An Overview 1. Preparation 2. Information Exchange 3. Agreement Proposals 4. Resolution B. Conceptual Models of Negotiation Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem-Solving Russell Korobkin, A Positive Theory of Legal Negotiation Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict Discussion Questions and Problems PART II: THE STRUCTURE OF NEGOTIATION Chapter 2: Estimating the Bargaining Zone A. BATNAs and Reservation Prices Russell Korobkin, A Positive Theory of Legal Negotiation Notes B. Calculating Reservation Price: A Prescriptive Approach 1. Step 1: The Baseline 2. Step 2: Adjusting from the Baseline Notes Discussion Questions and Problems Chapter 3: Persuasion A. Persuasion in a World of Hyper-Rational Negotiators B. The Psychology of Persuasion 1. Prediction Heuristics Craig R. Fox & Richard Birke, Forecasting Trial Outcomes: Lawyers Assign Higher Probability to Possibilities That Are Described in Greater Detail George Loewenstein, Samuel Issacharoff, Colin Camerer & Linda Babcock, Self-Serving Assessments of Fairness and Pretrial Bargaining Notes 2. Reference Point Heuristics Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach Russell Korobkin, Inertia and Preference in Contract Negotiation: The Psychological Power of Default Rules and Form Terms Notes 3. Social Signals Lee Ross, Reactive Devaluation in Negotiation and Conflict Resolution Notes 4. Affect Frank Kressman et al., Direct and Indirect Effects of Self-Image Congruence on Brand Loyalty James H. Stark & Douglas N. Frenkel, Changing Minds: The Work of Mediators and Empirical Studies of Persuasion Mary Frances Luce et al., Emotional Trade-off Difficulty and Choice Discussion Questions and Problems Chapter 4: Integrative Bargaining A. The Role of Differences David A. Lax & James K. Sebenius, The Manager as Negotiator Gerald B. Wetlaufer, The Limits of Integrative Bargaining Notes B. Frameworks for Identifying Integrative Opportunities 1. Focusing on Core Interests Rather than Positions Roger Fisher, William Ury & Bruce Patton, Getting to Yes 2. Changing the Contents of Negotiation ‘‘Packages’’ Notes C. Sources of Integrative Value in Legal Transactions 1. Adverse Selection 2. Moral Hazard 3. Uncertainty Notes Discussion Questions and Problems Chapter 5: Power A. Changing the Bargaining Zone B. Manipulating Perceptions of the Bargaining Zone Russell Korobkin, A Positive Theory of Legal Negotiation Notes C. Commitments Thomas Schelling, The Strategy of Conflict Notes D. Patience 1. The Cost of Lost Time 2. The Cost of Negotiating Notes E. The Pitfalls of Power 1. Miscalculation of the Bargaining Zone Can Lead to Impasse 2. Claims of Disinterest Might Not Be Credible 3. Power Tactics Can Produce an Emotional Response That Leads to Impasse 4. Power Tactics Can Negatively Affect Relationships and Reputations 5. Power Tactics Can Affect Performance of Agreements Notes Discussion Questions and Problems Chapter 6: Fair Division and Related Social Norms A. Meta-norms of Distributive Justice Notes B. Convention Daniel Kahneman, Jack L. Knetsch & Richard H. Thaler, Fairness as a Constraint on Profit Seeking: Entitlements in the Market Roger Fisher, William Ury & Bruce Patton, Getting to Yes Steven Lubet, Notes on the Bedouin Horse Trade or ‘‘Why Won’t the Market Clear, Daddy?’’ Notes C. Reciprocity as a Process Norm Robert B. Cialdini, Influence: Science and Practice Notes D. Combining Fair Division with Integration Discussion Questions and Problems PART III: THE NEGOTIATORS AND THEIR RELATIONSHIP Chapter 7: Trust A. The Negotiator’s Dilemma David A. Lax & James K. Sebenius, The Manager as Negotiator Notes B. The Potential for Trust Between Negotiators 1. Ongoing Relationships and Reputation 2. Contract 3. Prosocial Behavior Notes C. Strategies for Building Trust 1. Demonstrating Behaviors Consistent with Trustworthiness 2. Reducing Social Distance 3. Changing Social Context 4. Extending Trust Robert Axelrod, The Evolution of Cooperation Notes Discussion Questions and Problems Chapter 8: Emotions of Conflict A. The Source of Anger in Conflict 1. The Desire for Interactional Justice Notes 2. Attribution Biases Russell Korobkin, Psychological Barriers to Mediation Success: Theory and Practice Notes B. Managing the Emotions of Conflict 1. Confronting the Counterpart’s Emotions James H. Stark & Douglas N. Frenkel, Changing Minds: The Work of Mediators and Empirical Studies of Persuasion Notes 2. Managing the Negotiator’s Own Emotions Fred Luskin, Forgive for Good Notes Discussion Questions and Problems Chapter 9: Negotiator Style A. Conflict Orientation 1. Cooperation Versus Competition Gerald R. Williams, Legal Negotiation and Settlement 2. Empathy Versus Assertiveness Robert H. Mnookin, Scott R. Peppet & Andrew S. Tulumello, The Tension Between Empathy and Assertiveness Notes B. Aspiration Levels Russell Korobkin, Aspirations and Settlement Notes Discussion Questions and Problems Chapter 10: Group Membership A. Gender Linda Babcock & Sara Laschever, Women Don’t Ask: Negotiation and the Gender Divide Notes B. Culture Jeanne M. Brett, Culture and Negotiation Jeswald W. Salacuse, Making Deals in Strange Places: A Beginner’s Guide to International Business Negotiations Michele J. Gelfand & Sophia Christakopoulou, Culture and Negotiator Cognition: Judgment Accuracy and Negotiation Processes in Individualistic and Collectivistic Cultures Notes Discussion Questions and Problems PART IV: ADDITIONAL PARTIES Chapter 11: The Principal-Agent Relationship A. The Benefits of Lawyer-Agents 1. Technical Expertise 2. Negotiation Expertise 3. Signaling 4. Dispassionate Analysis 5. Justification Generation 6. Access 7. Strategic Advantage 8. Cost Effectiveness Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing Notes B. The Principal-Agent Tension 1. Different Preferences 2. Different Interests 3. Different Personalities 4. Expense Evans v. Jeff D. Russell Korobkin & Chris Guthrie, Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer Notes Discussion Questions and Problems Chapter 12: Multilateral Negotiations A. Coalition Formation 1. The Problem of Unstable BATNAs 2. Power Dynamics: Whether to Join a Coalition 3. Building Coalitions James K. Sebenius, Sequencing to Build Coalitions: With Whom Should I Talk First? Notes B. Fair Division C. Managing Communication Howard Raiffa with John Richardson & David Metcalf, Negotiation Analysis: The Science and Art of Collaborative Decision Making Donald G. Gifford, Legal Negotiation: Theory and Applications Notes Discussion Questions and Problems Chapter 13: The Use of Mediation in Negotiation A. The Potential Benefits of Mediation 1. Facilitate Introspection and Analysis 2. Facilitate Communication 3. Evaluate Issues Relevant to the Parties’ Reservation Prices 4. Filter Private Information 5. Create Focal Points 6. Reduce Reactive Devaluation 7. Deter Extreme Distributive Tactics 8. Help Negotiators Save Face Notes B. Mediator Strategies Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed Christopher W. Moore, The Caucus: Private Meetings That Promote Settlement Notes C. Transactional Mediation Scott R. Peppet, Contract Formation in Imperfect Markets: Should We Use Mediators in Deals? Notes Discussion Questions and Problems PART V: THE LAW OF NEGOTIATION Chapter 14: Deceit Restement (Second) of Torts Restatment (Second) of Contracts Restatement (Second) of Agency ABA, Model Rules of Professional Conduct A. Representations About the Negotiation’s Subject Matter Vulcan Metals Co. Inc. v. Simmons Manufacturing Co., Inc. Notes B. Representations Related to the Speaker’s Reservation Price Kabatchnick v. Hanover-Elm Building Corp. Notes C. Nondisclosure Swinton v. Whitinsville Savings Bank Weintraub v. Krobatsch V.S.H. Realty v. Texaco Notes D. Sanctions for Deceit Cresswell v. Sullivan & Cromwell Notes E. Misrepresenting the Objective: “Bad Faith” Negotiation SIGA Technologies, Inc. v. Pharmathene, Inc. Notes F. The Ethics of Misrepresentation James J. White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation Charles B. Craver, Negotiation Ethics: How to Be Deceptive Without Being Dishonest/How to Be Assertive Without Being Offensive Gerald B. Wetlaufer, The Ethics of Lying in Negotiations Reed Elizabeth Loder, Moral Truthseeking and the Virtuous Negotiator Notes Discussion Questions and Problems Chapter 15: Rules Encouraging Litigation Settlement A. Fee Shifting and “Offer of Settlement” Rules Edward F. Sherman, From “Loser Pays” to Modified Offer of Judgment Rules: Reconciling Incentives to Settle with Access to Justice Notes B. Judicial Settlement Conferences Federal Rules of Civil Procedure In re Novak Notes Nick v. Morgan’s Foods, Inc Notes C. Inadmissibility of Settlement Negotiations Federal Rules of Evidence Thomas v. Resort Health Related Facility Affiliated Manufacturers, Inc. v. Aluminum Co. of America Notes Discussion Questions and Problems Chapter 16: Limitations on Settlement A. Judicial Review of Settlements 1. Power Imbalances Lewis v. Lewis 2. Principal-Agent Conflicts Mars Steel Corp. v. Continental Illinois National Bank 3. Protecting the Public Interest United States v. Microsoft Corp. Notes B. Settlement in Multiple-Defendant Litigation Elbaor v. Smith Notes Discussion Questions and Problems Table of Cases Index