Transcript Negotiation & ADR Handout Prof. John Barkai William S. Richardson School of Law University of Hawaii.

Negotiation & ADR
Handout
Prof. John Barkai
William S. Richardson School of Law
University of Hawaii
Negotiation & ADR
are
Professional
and
Personal
Skills
www2.hawaii.edu/~barkai
Google: John Barkai
Not everyone can be
a great chef
But, everyone can
learn to cook
“Even a sheet of paper
has two sides”
Japanese Proverb
How many lawsuits are filed
in the U.S. each year?
Guess!
NOT
95% of cases settle
BUT
95% of cases terminate
without a trial
What is the appropriate amount
of Conflict?
Conflict
Conflict
Conflict
Conflict
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?
The easiest way to improve
your negotiation skills is to
A__
M___
Q________!
Open Ended Questions
Ask More, Get More
By Michael Alder
Is there anything else you can do for me?
What else can you do for me?
Can we accomplish the same thing for less money?
Is that the best you can do?
Do you have any discounts available?
I made a mistake. What can you do for me?
Expand the pie
Two Key Ideas
about Negotiation &
ADR
1) Focus on Interests
not positions
2) Improve the
Communication
(information & temperature)
Interests
Goals
Needs
Dreams
Desires
Same bed, different dreams
Iceberg Theory
“Below the line” issues
Huge & invisible
Purposely hidden
Out of awareness
U.S. Declaration of Independence
Security
Sovereignty
GETTING TO YES
Separate People from Problem
Interests not Positions
Invent Options
Objective Criteria
BATNA
http://mediationadvocacy.com/Getting%20to%20Yes.pdf
Dance Of Negotiation
You must dance!
Creates social pressure to concede
It’s normal v. stubborn, unfair, they might not deal
“Take it or leave it” limits your ability to N & credibility
Your dance signals the value of your case
“Aim high; score high”
Communication
Presented by:
Prof. John Barkai
William S. Richardson School of Law
University of Hawaii
What do you think is one of
the most important issues facing
our country in the next 10 years?
Speaker
(Instructor)
Active Listener
(Student)
Speaker
Continues
Comments
1
I had a terrible day
today.
What I hear you saying is
you had a terrible day today.
Yeah, that's what I said.
Are you feeling OK today?
Classic active
listening.
Uses introductory
phrase. Repeats
exact words.
2
I had a terrible day
today.
... a terrible day?
Yeah, nothing went right,
and then there was that
thing with my boss.
Skips introductory
phrase. Repeats a
few of the exact
words.
3
The boss screamed
at me about some
assignment.
... blamed by the boss?
Yeah, he was going on
and on about it.
Paraphrased, but still
not a complete
sentence.
4
He was being unfair.
I didn't even know
what he was talking
about.
... unfairly blaming you?
No, actually it did turn out
to be my fault. But he
shouldn't have acted like
that with my co-workers
around.
Speaker corrects
inaccurate active
listener.
5
How do you think
you would feel if
that happened to
you?
... you are very disturbed
about this.
Of course I am. No one
should have to go through
something like that.
Active listening used
instead of answering
the question.
6
[if they go on and
on and on and on
and on]
Wait a minute! Let me see if
I understand you correctly.
Active listening is
used to interrupt
without offending.
Communication Techniques
Speaker
Listener
Technique
1. What do you think is one of the most
important skills for negotiators?
Open-ended
Question
2. Ah, I'd say communication skills.
3. Tell me more about that.
Open-ended,
Follow-up Question
4. Sure. Negotiators need to be able to collect information and
to persuade people. Of course they need to communicate to do
that.
5. What do you mean by "collect
information?"
Clarifying
6. Negotiators need to learn information from other people. So
negotiators "collect" this information by asking appropriate
questions and using other communication techniques.
7. Humm, hum.
Passive Listening
8. After they have collected the information they then use it in
some way.
9. Can you be more specific?
Narrowing
10. Sure. When negotiators learn about the other side's
interest, they can use that information during the negotiation.
11. That's helpful, keep going.
Facilitator
12. They use techniques like open-ended questions, follow-up
questions, clarifying questions, and active listening.
13. How so?
Open-ended
14. They use these techniques to gather information from their
opponent.
15. They collect the information by using
these techniques?
Summarization
Active Listening
16. Yes, the good communicators collect the information which
is an important foundation for the negotiation.
17. How do you feel about that?
Open-ended Question
Probe for Feelings
18. I think it is one of the most important things that negotiators
do, and unfortunately, many negotiators neglect these skills.
19. So you think communication is
important, but many negotiators neglect
it?
Summarization
Active Listening
20. Right. Negotiators should realize that good communication
techniques can help them to be successful, and they should pay
attention to, and practice good communication techniques.
21. Thanks. You have helped me to
better understand your views about
communication. And, I hope I have
helped you demonstrate some of the
techniques that you have talked about.
REFRAMING
Negative Statement
Reframed
She talks too much
She's so friendly and puts
everyone at ease.
He argues so much
He has such strong convictions
She thinks she knows it all
He is so conceited
She too easygoing
He's so stingy
She spends too much money
He's too rigid
She can never sit still
She's too emotional
The Importance of Non-verbal Communication
7%
What Forms First Impressions
Albert Marabian- UCLA
“the words”
38%
“tone of voice”
55%
“body language”
Often stated as …………
Hostage Negotiation
Gary Noesner
http://www.garynoesner.com/
The key to
hard negotiation situations
is
soft communication skills
Active Listening
for Crisis Negotiations
- gather information
- develop rapport
- build trust
The response to impasse is …
Persistence,
Persistence,
Persistence.
Try it again
even if it didn’t work before
Tactics Video
The Last Gap in Negotiations.
Why is it Important? How can it be Crossed?
John H Wade
Bond University, Australia
Crossing the last gap
Talk - try to convince – seldom works
•
•
•
•
•
•
•
•
Split Difference – (Take less than ½)
Expand the pie -subdivide the last gap
Make a donation (tax deductible)
Expanding the pie by an add-on offer - "What
if I moved on….[this issue]?"
Refer to a third party arbitrator/judge/etc.
Chance - flip coin
Chance - Draw gradations from a hat – ¼, 1/3,
1/2, 2/3, ¾, etc.
Transfer the last gap to a third party (child,
relative, etc.)
Crossing the last gap in negotiations
Talk - try to convince – seldom works
• Conditional offers and placating incremental fears
- "What if I could convince client to...? How
would you respond?"
• Pause - and speak to significant others
• Pause - and schedule time for a specific offer
• Defer division of last gap; divide rest
• Sell last item at auction; split proceeds
• Pick-a-pile; you cut, I choose
• Skilled helper has a face -saving tantrum
• File another motion or law suit – pursue pain and
hope.
Changing Minds
The Work of Mediators and Empirical Studies of Persuasion
James Stark & Douglas Frenkel
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1769167
Persuasion by:
Role reversal
Apologies
Rhetorical questioning -a question that is asked in order to make a point
- but seems like direct statements are more effective
Direct statements - 2-sided messages w/ reasons why 1 side will win and
explicit conclusions
Negative Emotions: Fear and Guilt
Group brainstorming
Sequential requests are best, either
- Foot-In-The-Door (a little at first, then for more) or
- Door-In-The-Face (ask for more than can be gotten first, then fall back)
3 Slices of Differences
Culture
MBTI
Gender
What we grow up with, is “normal” to us.
Cross Border
National
Ethnic
Professional
Gender
Age – Generational
Digital immigrants & natives
Local v. Mainland
Neighbor island v. Oahu
Differences within HI “local” cultures
Cross-Cultural Negotiation
1)
Different Cultural Interests and Values
2)
Different Conversational Styles
Patterns
Smart Bargaining: Doing
Business with the Japanese
Graham & Sano
Japan External Trade Organization's (JETRO)
Deborah Tannen
Georgetown University Linguistics Professor
How language affects relationships
Patterns – Conversational Style
You learned
(almost) everything
you need to know
about Cross-Cultural Negotiation
at home
Yo momma wears combat boots
(hierarchy – competition - male pattern)
Your sister tells secrets
(closeness / rapport – female pattern)
Your spouse can't communicate
(Direct/indirect speech)
(High / low context)
Classic Male-Female conflicts
It’s not about the nail
https://www.youtube.com/watch?v=-4EDhdAHrOg
Psychological Types
& Negotiations:
Conflicts and Solutions
Suggested by the
Myers-Briggs Type Indicator
Prof. John Barkai
William S. Richardson School of Law
University of Hawaii
Characteristics of the Myers-Briggs Psychological Types
ISTJ
Serious, quiet, earn success by concentration and
thoroughness. Practical, orderly, matter-of-fact,
logical, realistic, and dependable. See to it that
everything is well organized. Take responsibility.
Make up their own minds as to what should be
accomplished and work toward it steadily, regardless
of protests or distractions.
ISFJ
Quiet, friendly, responsible, and
conscientious. Work devotedly lo meet their
obligations. Lend stability lo any project or
group. Thorough, painstaking, accurate.
Their interests are usually not technical.
Can be patient with necessary details Loyal,
considerate, perceptive, concerned with
how other people feel
INFJ
Succeed by perseverance, originality, and
desire to do whatever is needed or wanted.
Put their best efforts into their work. Quietly
forceful, conscientious, concerned for
others. Respected for their firm principles.
Likely to be honored and followed for their
clear convictions as to how best to serve
the common good
INTJ
Usually have original minds and great drive
for their own ideas and purposes. In fields
that appeal to them, they have a fine power
to organize a job and carry it through with or
without help. Skeptical, critical,
independent, determined, sometimes
stubborn. Must learn to yield less important
points in order to win the most important.
ISTP
Cool onlookers-quiet, reserved, observing and
analyzing life with detached curiosity and
unexpected flashes of original humor. Usually
interested in cause and effect. How and why
mechanical things work, and in organizing facts
using logical principles.
ISFP
Refiring, quietly friendly. sensitive. kind,
modest about their abilities. Shun
disagreements, do not force their opinions
or values on others. Usually do not care to
lead but are often loyal followers. Often
relaxed about getting things done, because
they enjoy the present moment and do not
want to spoil il by undue haste or exertion.
INFP
Full of enthusiasms and loyalties, but
seldom talk of these until they know you
well. Care about learning, ideas, language,
and independent projects of their own. Tend
to undertake too much, then somehow get it
done. Friendly, but often too absorbed in
what they are doing to be sociable. Little
concerned with possessions or physical
surroundings.
INTP
Quiet and reserved. Especially enjoy
theoretical or scientific pursuits. Like solving
problems with logic and analysis. Usually
interested mainly in ideas, with little liking
for parties or small talk. Tend to have
sharply defined interests. Need careers
where some strong interest can be used
and useful.
ESTP
Good at on-the-spot problem solving. Do no, worry,
enjoy whatever comes along. Tend to like
mechanical things and sports, with friends on the
side Adaptable, tolerant, generally conservative in
values. Dislike long explanations. Are best with real
things that can be worked, handled, taken apart, or
put together.
ESFP
Outgoing, easygoing, accepting, friendly,
enjoy everything and make things more fun
for others by their enjoyment. Like sports
and making things happen. Know what's
going on and join in eagerly. Find
remembering facts easier than mastering
theories. Are best in situations that need
sound common sense and practical ability
with people as well as with things.
ENFP
Warmly enthusiastic, high-spirited,
ingenious, imaginative. Able to do almost
anything that interests them. Quick with a
solution for any difficulty and ready to help
anyone with a problem. Often rely on their
ability to improvise instead of preparing in
advance. Can usually find compelling
reasons for whatever they want.
ENTP
Quick, ingenious, good at many things.
Stimulating company, alert and outspoken.
May argue for fun on either side of a
question. Resourceful in solving new and
challenging problems, but may neglect
routine assignments. Apt to turn to one new
interest after another. Skilful in finding
logical reasons for what they want.
ESTJ
Practical, realistic, matter-of-fact, with a natural head
for business of mechanics. Not interested in subjects
they see no use for, but can apply themselves when
necessary, Like to organize and run activities. May
make good administrators, especially if they
remember to consider others' feelings and points of
view.
ESFJ
Warm-hearted, talkative, Popular,
conscientious, born cooperators, active
committee members. Need harmony and
may be good at creating it. Always doing
something nice for someone. Work best
with encouragement and praise. Main
interest is in things that directly and visibly
affect People's lives.
ENFJ
Responsive and responsible. Generally feel
real concern for what others think or want,
and try to handle things with due regard for
the other person's feelings. Can present a
proposal or lead a group discussion with
ease and tact. Sociable, popular,
sympathetic. Responsive lo praise and
criticism.
ENTJ
Hearty, frank, decisive, leaders in activities
Usually good in anything that requires
reasoning and intelligent talk, such as public
speaking Are usually well informed and
enjoy adding to their fund of knowledge.
May sometimes appear more positive and
confident than their experience in an area
warrants.
Joke Prayers for Myers-Briggs Psychological Types
ISTJ
God, help me to begin
RELAXING
about little details
tomorrow at 11:41.32 am
ISFJ
Lord, help me to be
more laid back, and
help be to do it
exactly right!
INFJ
Lord help me
not be a perfectionist.
(Did I spell
that correctly?)
INTJ
Lord, keep me open
to others' ideas,
ISTP
God, help me to
consider
people's feelings,
even if most of them
are hypersensitive
ISFP
Lord, help me to
stand up for my
RIGHTS!
(if you don't
mind my asking)
INFP
Lord, help me to
everything
I
sta
INTP
Lord, help me be
less independent,
but let me
do it
MY way.
ESTP
God,
help me to take
responsibility
for my own actions,
even though they're
usually not my fault!
ESFP
God,
Help me to
take things more
seriously
especially
parties & dancing
ENFP
God,
Help me keep
my mind on one th--Look! A Bird!
ing
at a time
ENTP
God, help me
follow established
procedures today.
On second thought,
I'll
settle for a few minutes.
ESTJ
God, help me to not try to
RUN everything.
But, if you
need some help,
JUST ASK!
ESFJ
Lord, give me
patience
and
I mean right
ENFJ
God, help me to do
only what I can,
and trust you for the rest.
Do you mind putting that
in writing?
ENTJ
God, help me to
slow
downandnot
rushthrough
whatIdoAmen
NOW!
finish
WRONG
though they maybe!
Guesses of Psychological Types of Famous People
ISTJ
Sparky Anderson, Rosalynn Carter, Sam Donaldson, Jesse
Helms, Jackie Joyner-Kersee, Cathy Rigby, Jack Webb, U.S.
Presidents: (most frequent type) George H. W. Bush, Calvin
Coolidge, Dwight D. Eisenhower, Benjamin Harrison, Herbert
Hoover, Andrew Johnson, George Washington
ISFJ
Louisa May Alcott, Alfred Lord Tennyson, Barbara
Bush, Princess Diana, Charles Dickens, Queen
Elizabeth II, Michael Jordan, Robert E. Lee, Ed
McMahon, Mary Tyler Moore, Marie Osmond, O.
J. Simpson, Kristi Yamaguchi, U.S. President
William Howard Taft, Fictional: David Copperfield,
Ophelia, Porky Pig, Watson (Sherlock Holmes'
sidekick)
INFJ
Woody Allen, Clara Barton, Shirley Temple Black,
Geoffrey Chaucer, Agatha Christie, Billy Crystal,
Bob Dylan, Martin Luther King, Michael Landon,
Shirley MacClaine, Florence Nightingale, Ryan
O'Neal, Tom Selleck, Paul Stookey (Peter, Paul
and Mary), Mother Teresa, Oprah Winfrey, U.S.
Presidents Martin Van Buren & Jimmy Carter
INTJ
Dan Akroyd, Susan B. Anthony, Arthur Ashe, Caesar,
Jane Austen, William F. Buckley, Raymond Burr,
Chevy Chase, Phil Donahue, Michael Dukakis,
Bryant Gumbel, Hannibal, Charles Everett Koop, C.
S. Lewis, Joan Lunden, Edwin Moses, Martina
Navratilova, Pernell Roberts, Maria Shriver, U.S.
Presidents: Chester A. Arthur, Thomas Jefferson,
John F. Kennedy, James Polk, Woodrow Wilson
ISTP
Humphrey Bogart, Charles Bronson, Johnny Cash, Cher,
Tom Cruise, James Dean, Clint Eastwood, Peter Fonda,
Ernest Hemingway, Kris Kristofferson, Willie Nelson, Burt
Reynolds, Keith Richards, Frank Sinatra, Sylvester Stallone,
Patrick Swayze, Frank Zappa, U.S. Presidents Millard
Fillmore & Zachary Taylor, Fictional: "The Fonz," Hedda
Gabler, Popeye the Sailor, Willy, the killer whale
ISFP
Paula Abdul, Andre Agassi, Fred Astaire, Yogi
Berra, Doris Day, Michael Jackson, Ervin "Magic"
Johnson, Greg Louganis, Marie Antoinette, Marilyn
Monroe, Olivia Newton-John, Dan Quayle, Debbie
Reynolds, Doc Severinson, Brooke Shields,
Donald Sutherland, Elizabeth Taylor, U.S.
President Ulysses S. Grant
INFP
Tom Brokaw, Joyce Brothers, Dick Clark, Neil
Diamond, Anne Frank, Judy Garland, Audrey
Hepburn, Homer, Helen Keller, Henry Wadsworth
Longfellow, St. Luke, Mary - mother of Jesus,
Jacqueline Kennedy Onassis, Donna Reed, Carl
Rogers, Amy Tan, James Taylor, Virgil, Fictional:
Calvin, E.T., Hamlet - Prince of Denmark
INTP
John Barkai, Macauley Culkin, Charles Darwin, Rene
Descartes, Albert Einstein, Thor Heyerdahl, Ron
Howard, Midori Ito, C. G. Jung, Henry Mancini, Bob
Newhart, Sir Isaac Newton, Leonard Nimoy, Blaise
Pascal, Rob Reiner, Socrates, Meryl Streep, U.S.
Presidents: John Quincy Adams, Gerald Ford, James
Madison, John Tyler, Fictional: Linus ("Peanuts")
ESTP
Lucille Ball, Jimmy Conners, Michael J. Fox, W. C. Fields,
Joe Garagiola, Marvin Haglar, King Henry VIII, Reggie
Jackson, Evel Knievel, John Madden, Madonna, Eddie
Murphy, Jack Nicholson, Colin Powell, Don Rickles, Joan
Rivers, Roy Rogers, Wesley Snipes, Mr. T, John Wayne,
Mae West, Chuck Yeager, U.S. Presidents: James
Buchanan, Andrew Jackson, Franklin Pierce, Theodore
"Teddy" Roosevelt, Fictional: Scarlett O'Hara
ESFP
Gracie Allen, Peggy Cass, Carol Channing, Dale
Evans, Eva Gabor, Kathy Lee Griffith, Arsenio
Hall, Woody Harrelson, Goldie Hawn, Bob Hope,
Mary Queen of Scots, Jim Nabors, Dolly Parton,
Kyle Petty, Mary Lou Retton, Will Rogers, Meg
Ryan, Willard Scott, Red Skelton, Suzanne
Somers, Jim Varney (Ernest_ movies), U.S.
President Warren G. Harding
ENFP
Julie Andrews, "Dr." Seuss, Burl Ives, Captain
Kangaroo, Hayley Mills, Elizabeth Montgomery,
Geraldo Rivera, Andy Rooney, Mickey Rooney,
Dave Thomas (owner of Wendy's hamburger),
Robin Williams, Cathy (comic strip character)
ENTP
Alexander the Great, John Candy, Lewis Carrol, Sir
Winston Churchill, Bill Cosby, Thomas Edison, Alfred
Hitchcock, Groucho Marx, Wolfgang Amadeus
Mozart, British Admiral Nelson, Sir Walter Raleigh,
George Bernard Shaw, John Sununu, Lily Tomlin,
Oscar Wilde, Gene Wilder, Weird Al Yankovic, U.S.
Presidents: John Adams, James A. Garfield,
Rutherford B. Hayes, Finctional: Bugs Bunny, Wile E.
Coyote, Garfield The Cat
ESTJ
Bonnie Blair, Lloyd Bridges, Bette Davis, Rev. Billy Graham,
Carl Lewis, John D. Rockefeller, U.S. Senator Robert A.
Taft, U.S. Presidents: Grover Cleveland, Lyndon B. Johnson,
James Monroe, Harry S. Truman, Fictional: Lucy (Peanuts
cartoon character)
ESFJ
Desi Arnaz, Jack Benny, Carol Burnett, LeVar
Burton, John Connally, Nancy Kerrigan, Don
Knotts, Griffith Show", Reba McIntire, Vincent
Price, Marilyn Quayle, Julia Roberts, Steve
Spurrier, Jimmie Stewart, Sally Struthers, U.S.
Presidents: William J. Clinton, William Henry
'Tippecanoe' Harrison, William McKinley, Ronald
M. Reagan, Fictional: Hoss Cartwright, Donald
Duck, Ricky Ricardo ("I Love Lucy")
ENFJ
Mario Cuomo, David - King of Israel, Elizabeth
Dole, Dick Van Dyke, James Garner, Andy Griffith,
Abraham Maslow, Francois Mitterand, Wayne
Newton, Ross Perot, President Abraham Lincoln
ENTJ
Alan Alda, Lamar Alexander, Les Aspen, Candace
Bergen, Anita Bryant, Julius Caesar, Cicero, Sean
Connery (James Bond - 007), Howard Cosell, Queen
Elizabeth I, Harrison Ford, Whoopi Goldberg, Al
Gore, Garrison Keillor, Jay Leno, Dave Letterman,
Rush Limbaugh, Tony Orlando, Antonin Scalia,
Norman Schwarzkopf, Margaret Thatcher, Sigourney
Weaver, U.S. Presidents Richard M. Nixon & Franklin
D. Roosevelt, Daffy Duck, Yogi Bear
Myers-Briggs Preferences
Extraversion – Introversion
Sensing – Intuitive
Thinking – Feeling
Judging - Perceiving
E–I
S–N
T–F
J-P
Preferences
ISTJ
ISFJ
INFJ
INTJ
“Take Your
Time and Do It
Right”
“On My Honor,
to Do My
Duty…”
“Catalyst for
Positive
Change”
“Competence +
Independence =
Perfection”
ISTP
ISFP
INFP
INTP
“Doing the Best
I Can With
What I’ve Got”
“It’s the
Thought That
Counts”
“Still Waters
Run Deep”
“Ingenious
Problem
Solvers”
ESTP
ESFP
ENFP
ENTP
“Let’s Get
Busy!”
“Don’t Worry,
Be Happy”
“Anything’s
Possible”
“Life’s
Entrepreneurs”
ESTJ
ESFJ
ENFJ
ENTJ
“The Public
Relations
Specialist”
“Everything’s
Fine – I’m in
Charge”
“Taking Care of “What Can I Do
Business”
For You?”
Distribution of MBTI Types -Total
ISTJ
11-14%
ISFJ
9-14%
INFJ
1-3%
INTJ
2-4%
ISTP
4-6%
ISFP
5-9%
INFP
4-5%
INTP
3-5%
ESTP
4-5%
ESFP
4-9%
ENFP
6-8%
ENTP
2-5%
ESTJ
8-12%
ESFJ
9-13%
ENFJ
2-5%
ENTJ
2-5%
Source: Center of Applications of Psychological Type - 2006
MBTI Types - Females
ISTJ
7-10%
ISFJ
15-20%
INFJ
2-4%
INTJ
1-3%
ISTP
2-3%
ISFP
6-10%
INFP
4-7%
INTP
1-3%
ESTP
2-4%
ESFP
7-10%
ENFP
8-10%
ENTP
2-4%
ESTJ
6-8%
ESFJ
12-17%
ENFJ
3-6%
ENTJ
1-4%
Source: Center of Applications of Psychological Type - 2006
MBTI Types - Males
ISTJ
14-19%
ISFJ
6-8%
INFJ
1-2%
INTJ
2-6%
ISTP
6-9%
ISFP
4-8%
INFP
3-5%
INTP
4-7%
ESTP
5-6%
ESFP
3-7%
ENFP
5-7%
ENTP
3-7%
ESTJ
10-12%
ESFJ
5-8%
ENFJ
1-3%
ENTJ
3-6%
Source: Center of Applications of Psychological Type - 2006
Percentages of Types
E
I
S
N
T
F
J
P
Total
45-53
47-55
66-74
26-34
40-50
50-60
54-60
40-46
Females
45-55
45-55
70-75
25-30
24-35
65-76
55-60
40-45
Males
45-50
50-55
65-72
28-35
55-67
33-45
52-58
42-48
MBTI General Population Frequencies
Most & Least Law Students/Lawyers
ISTJ
ISFJ
INFJ
INTJ
11-14%
11-17.8%
9-14%
2.4%
1-3%
2.7-3.2%
2-4%
9.2-14.1%
ISFP
INFP
5-9%
1.4%
4-5%
3.9%
ISTP
4-6%
ESTP
ESFP
4-5%
2.3-3.3%
4-9%
.5-1.9%
ESTJ
ESFJ
8-12%
10.3-16.4%
9-13%
2.5-3.5%
Least frequent
law student/
lawyer types
INTP
3-5%
ENFP
ENTP
6-8%
2-5%
7.3-10.6%
ENFJ
ENTJ
2-5%
2-5%
9-13.2%
Most frequent
law student/
lawyer types
Points of View
Viewing through type
When you are really frustrated by
another person’s
behavior or comments,
You probably are not seeing things
from their point of view.
BARKAI'S THESIS:
People with certain preferences
[combinations of letters]
are more likely to have
certain psychological needs or
interests in negotiations
They may
consider, decide, and act in
rather predictable patterns.
If you
understand the patterns,
you are better able to
reduce and resolve conflicts.
Extraversion
or
Introversion
E -I
Description
Extraverts
Introverts
Outer directed
Energy & excitement
Love "people" action
Inner directed
Quiet
People drain them
Communication Style
Extraverts
Introverts
• Fast & talkative
• Think out loud
• Ready, fire, aim
• Slow & quiet
• Internally thoughtful
• Ready, ready, ready
Working with them
Extraverts
Introverts
• Small talk is ok
• Ask open-ended
questions
• Impasse?
Change energy
• Draw them out
• Give them time to
think
• Send it in writing
Tips for you
Extraverts
Introverts
• Slow down & listen
• Warn them about you
• Get them to
brainstorm
• Be clear & forceful
• Once is not enough
• Smile
Judgment
or
Perception
J-P
Description
Judgers
Perceivers
Like control & structure
Want to get it decided
Aggressive at decisions
Want more information
Keep options open
Dislike schedules
Communication Style
Judgers
Perceivers
Discuss aggressively
Quick to decide
Blame someone else
Informal style
Love to brainstorm
Discuss contingencies
Working with them
Judgers
Perceivers
They need structure
Don't constrain them
Last minute changes
Help them select options
Get details before closure
They sound more definite
than they are
Tips for you
Judgers
Perceivers
Have all the facts?
Avoid fast conclusions
Allow others some time
Reduce the options
Assert your preferences
Just pick one
Sensing
or
Intuition
S-N
Description
Sensors
Intuitivies
• The 5 senses
• Practical reality
• Status quo
• Possibilities
• See the Big Picture
• Theoretical overview
Communication Style
Sensors
Intuitives
• Hear things literally
• Step-by-step
• They don't brainstorm
• Jump around a lot
• Hear things figuratively
• Consider facts as limits
Working with them
Sensors
Intuitives
• Stay in "here-and-now"
• A concern for history
• Factual & detailed
• Brainstorm novel ideas
• Metaphors & analogies
• Assist getting to action
Tips for you
Sensors
Intuitives
• More than just the facts
• Peel the onion
• Same fact cuts both
ways
• Stick to the issues
• Settle easy things first
• Don't overlook details
Thinking
or
Feeling
T-F
Description
Thinkers
Feelers
• Objective
• Logical
• Focus on the task
• Subjective values
• Harmony
• Sociable & friendly
Communication Style
Thinkers
Feelers
• Brief & concise
• Impersonal terms
• Pros & Cons
• Talk story
• Friendly
• Perhaps time consuming
Working with them
Thinkers
Feelers
• Be logical & organized
• Cost-benefit analysis
• Avoid emotions
• Be interested in people
• Start with agreements
• Don't criticize them
Tips for you
Thinkers
Feelers
• Allow some emotions • Don't take it personally
• Find out what they feel • Be brief & don't repeat
• Any "people" issues? • Forget harmony this time
Zig-Zag Pattern for
Presenting Information
Sensing
Intuition
Thinking
Feeling
Mottos
Extraverts
“Let’s talk this over.”
Introverts
“I need to think about
this.”
Sensors
“Just the facts, please.”
Intuitives
“I can see it all now.”
Thinkers
“Is this logical?”
Feelers
“Will anyone be hurt?”
Judgers
“Just do something.”
Perceivers
“Let’s wait and see.”
Mediation
Conciliation
Professor John Barkai
William S. Richardson School of Law
University of Hawaii
Mediation
is
assisted negotiation
NO POWER
The mediator has
no power
to decide the dispute
but sometimes
“proposes” a solution
(if evaluative)
Levels of Mediation
•
•
•
•
•
Community
Family disputes
Commercial/Construction/Legal
Other types
International Politics
Why should you use mediation?
Compared to litigation
- Faster
- Cheaper
- Private - confidential
- Less formal
- Parties remain in control of their dispute
Traditional reasons
Why should you use mediation?
The truth is …
Virtually all psychology principles work
against negotiators to make them overvalue their case
Many negotiators need a mediator’s help
overcoming strategic barriers to successful
negotiations
The truth is (?)
Misevaluated your case
See it is being better than it actually is
Selective perception – ignores the bad
Over confident
Negotiating poorly
Strategic bargaining has caused problems
Reactive devaluation
Go beyond what the law will allow
Mediation allows you to go beyond
what the law will allow,
and that is one of the major reasons
you should consider mediation
Litigation / Mediation
Past / Future
傍目八目
Okame Hachimoku
(Japanese proverb)
The onlookers see
more than the players.
Japanese
The mediator’s
most powerful
2-letter word
is
Styles of Mediation
FACILITATIVE
EVALUATIVE
Facilitative mediators
ASK
Evaluative mediators
TELL
PRACTICE MEDIATOR LINES
FORUM PHASE - DEALING WITH THE PAST AND THE PRESENT
Can we agree that as a ground rule, we will ...
Remember, you both agreed not interrupt..
Tell me more about that.
When did this happen?
So what you are saying is ...
Wait. Let me be sure I understand correctly. You're saying ...
So, as far as you are concerned ...
What else is important?
Could you say more about that?
How do you feel about what happened?
What do you mean by that?
Is there anything else you want to add?
Let's move to the issue of ...
Can you tell me more about ...?
What additional information do you have on that?
Of all that you have talked about, what is most important to you now?
NEGOTIATION PHASE - DEALING WITH THE FUTURE
What could X do to help you solve this problem?"
What can you do to help solve this problem?
Do you have any other ideas for solving this problem?
What do you think will happen if you can't negotiate a solution?
How do you want things to be between the two of you?
Is what you are talking about now helpful in reaching a solution?
Put yourself in Mr./Ms. X's shoes. How do you think they feel right now.
What do you have in mind on that topic?
If X were to do A, what would you be willing to do?
What I hear you saying is that you might be willing to ...
You both seem to agree that ...
Do you agree with the solution that we are talking about?
What you are talking about sounds like it might work. What will happen if ...
MUCH LATER - MEDIATOR SUGGESTIONS:
How would you feel about ...
What would happen if you tried ...
MEDIATORS FIND SOLUTIONS
by
HELPING PARTIES NEGOTIATE
Uncover Interests
Prioritize Interests
Brainstorm Options
"What could they do...?"
"What could you do...?"
Establish criteria
Create Doubts
Review the Relationship
Engage in contingent Bargaining
"If they were to , what could you do?"
"For you to , what would you expect
them to do?"
Narrow the differences
Save Face
Emphasize Progress
Engage in Reality Testing: BATNA
Stress the Consequences of No Agreement
Find External Standards & Sources
Cheerleader for settlement
And, as a last resort:
Mediator suggests MULTIPLE options
Why Women Must Ask
Margaret Neale
• If you don’t negotiate your job terms
(especially $$), you will always be
behind (the difference compounds over
time)
• Ineffective preparation – big mistake
• Lower expectations will hurt you
• Avoid the female penalty for negotiating
(which is real) – take on a communal
focus for the organization to sell yourself
• Broaden your definition of negotiation
• Assess: how can I influence the outcome
• Plan
• Ask
• Package the proposal
• Don’t be afraid of asking
Top Recommendations
• Package your requests so you can
say, “Here are the resources I need to
be effective.”
• Use your networks to get insights
• Develop options;
know (and improve) your BATNA
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
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.
Tongue Fu
Difficult Conversations
Apology
Why Can’t You Shut Up?
Prof. John Barkai
William S. Richardson School of Law
University of Hawaii
Kung Fu
Chinese martial art
emphasizing
internal
development to
defuse, disarm and
deflect
physical attack.
Tongue Fu
Martial art of
Verbal self-protection
&
Communication
to prevent conflicts
and resentment when
you have good
intentions.
Tongue Fu
It’s not what you say,
but how you say it
Words to Lose
Fighting phrases
Words to Use
Friendly phrases
Avoid “trigger words,” creating resentment -> Rapport
Butt out
I am sure you are all
really smart,
but…
No “Buts” about it
“But” Out!
Lose
“But…”
Use
“And…”
AND instead of BUT
BUT
You did a good
job, but you get
defensive when
someone gives
you constructive
criticism.
AND
You did a good job,
and, when you can
learn to accept some
help, you’ll do even
better and be an
even more valuable
team member.
But someone near you
2-3x each
That’s a pretty good idea you had, but ….
I know you have thought about it for a long time, but…
You probably think you are working very hard, but…
Throw more but’s out!
Don’t dismiss ideas mid sentence, acknowledge their contributions
and make them feel like you’re both working towards the same goals.
And
Having said that
However
Never say “No” or “Can’t”
Words to Lose
“No”
“You can’t…”
“You can’t
because…”
Words to Use
“Sure, as soon as…”
“Yes, right after…”
“No” - shuts the verbal door in the face
“No” is a dead-end word
Shifts the responsibility for getting what they want to you – not them
Don’t say “no”
to their request
2-3x each
Dad, can
I borrow
the car
tonight?
Can I
have a
raise?
You Should Have …
Don’t “SHOULD” on them
Lose
Use
“You should have …”
“You need to …”
Can’t change past
Shames
Lose face
Resentment
“Next time…”
“From now on…”
“In the future…”
Coaches
Respectful
Shapes
Coach instead of criticize
Should on someone near you
You should have …
…come to me earlier with this
You should have …
…gotten my approval before acting alone
You should have …
Then rephrase it with Tongue Fu
Avoid EXTREMES
be SPECIFIC
“EXTREMES”: NEVER,
ALWAYS, NO ONE
“SPECIFICS”
You never attend my
meetings.
This is the second time this
month you’ve missed. Is there
a problem? We need your
area to be represented.
You always tell me you’ll
be done on time, and
you never are.
Your work was late last week
too. Please let me know in
advance if you’re going to miss
the estimates.
Stop Defending
Yourself
You obviously don’t care
much about …
customers
me
anyone other than yourself
the little guys
You’re clearly biased
You’re not giving me
a fair chance
Don’t know what to say
when you are accused?
Don’t really “say” anything.
Draw out the real issue.
Ask Questions
Answer accusations
with questions
“What do you mean?”
“Why do you say that?”
“What makes you think that?
Careful about your tone of voice when you say these things
4 Magic Phrases
To Get Out of Any Jam
That’s interesting; tell me more.
That’s interesting; why would you ask that?
That’s interesting; why would you say that?
That’s interesting: why would you do that?
https://www.youtube.com/watch?v=g5RknemM8Hw
1million views
Dan O’Connor
Accuse someone
near you
then let them
“draw you out”
by asking questions
Explanations Appear As EXCUSES
If what they’re saying is basically true,
say “YOU’RE RIGHT!” (magic words)
and take the AAA Train
A= Agree:
“You are right.”
A= Apologize: “I’m sorry.”
A= Act:
“I will …”
- sometimes you don’t even have to act
Your Mistake?
Lose
“No way! I
didn’t…”
Use
“You’re right. I
should
have…”
Just admit it, don’t try to excuse it
Requests, not orders
Lose
“You’ll have to…”
“You need to …”
Sounds like orders
Use
“If you would…?”
“Could you
please…?”
“Would you like…?”
Use
Requests
Recommendations
When you don’t know
the answer
Lose
“I don’t know what
you can do.
Use
“That’s a good
question. Let
me ask …
… if you can hold
on for a
moment, we
can…
Make Eye Contact
Kids know that your eyes show
where your attention is focused
So do adults.
Are they Out of Control?
Turn Ranting and
Raving into Reporting
by
Say PLEASE instead of
“YOU’LL HAVE TO…”
LOSE
USE
You have to submit your
reports by Friday.
In order to avoid being on
the non-compliance list,
please submit your reports
by Friday.
You have to complete a
change request if you
want that to be added to
the project.
In order that we may
provide you with a valid
estimate of the impact,
please, submit a change
request.
CAN instead of CAN’T
DEVISE a way, instead of DEPRIVE
CAN’T
We CAN’T!
I can’t I have too
much work to do.
CAN
Here are the options we
have to satisfy your
request. This is what we
recommend…
I can. Please schedule
a time for us to meet and
figure out how to fit it in
to my schedule.
Don’t Take Nasty People
Home with You
http://www.youtube.com/watch?v=t5AHvfZEyvY
-
story of the employee and boss
9 am incident
fuming all day
told spouse that night
- who is making you mad?
- who did you give a ride home to?
- who did you set a place for at the table?
Calm down
I understand …
“I can’t help you until you calm down!” “I understand how upset you are, and
I can help.”
Calm down? – Don’t tell me to “calm down.”
Calm down
I understand …
“I can’t help you until you calm down!” “I understand how upset you are, and
I can help.”
“Please calm down and I’ll be able to
help you.”
Calm down? – Don’t tell me to “calm down.”
Calm down
I understand …
“I can’t help you until you calm down!” “I understand how upset you are, and
I can help.”
“Please calm down and I’ll be able to
help you.”
“I understand why you would feel that
way; please give me a chance to help.
Calm down? – Don’t tell me to “calm down.”
What to say
Graciously Exit
No-win Disputes
Let’s agree to disagree on this one.
You know what, we are both right.
Hey, we need to remember that we are on the
same side.
Just because we don’t see eye to eye doesn’t
mean we have to be enemies.
This is a no-win. Next subject.
Have some
“stock” phrases
ready
Tongue Glue
Fun Fu
Find a humorous response to
someone pressing you hot buttons.
Steal their thunder.
Tall man’s T-shirt:
Front side: No I’m not a basketball player.
Back side: “Are you a jockey?”
This is important with kids. Adults hold their anger longer.
It’s 5 p.m. now
You can try to teach a
pig to sing,
but it wastes your
time,
and annoys the pig
Tongue Fu
Hear a Sam Horn's Tongue Fu presentation
http://www2.hawaii.edu/~barkai/HO/TongueFu.mp3
Difficult Conversations
The key idea:
Shift to a
Learning Conversation
- instead of trying to persuade
-
understand their point of view
explain your point of view
share and understand feelings,
work together
See &
acknowledge
your own
contribution
Three Components
1. ‘What Happened’ Conversation
2. Feelings Conversation
3. Identity Conversation
(you might not talk about 2 & 3)
1.Truth assumption
– “I’m right. You’re wrong.”
1.Intention invention -
we
“know” the other’s intention (bad)
[and ours is good]
1.Blame game –establishing
‘blame’ or ‘fault’ creates
defensiveness, anger and frustration.
Shift
• From truth
perceptions
• What’s my story? What’s their story?
• Blame
contribution
• What have we each contributed to this situation?
How can we fix things going forward?
• Intentions
impact
• What assumptions am I making about their
intentions? What is the impact on me?
The Feelings Conversation
Ignoring (refusing
to acknowledge and
deal with) feelings
– your own and the
other person’s – is
the most common
mistake made in
dealing with
difficult
conversations.
•Have your feelings, or they will
have you.
•Feelings are what make
relationships enjoyable and
satisfying
•Feelings are what make
difficult conversations
difficult
The Identity Conversation
Difficult
conversations
are not just
difficult
because we
have to face
the other
person, but
because we
have to face
ourselves.
•The Identity Conversation
(Difficult conversations can threaten our
identity)
•Am I competent?
•Am I a good person?
•Am I worthy of love?
Starting a Difficult Conversation
The ‘Third Story’
is not your story
and it’s not their
story. It’s the
point of view of a
third person. To
discover the third
story, think like a
mediator.
•
Where to begin
•
Start with ‘The Third Story’
1. The Third Story
2. Their Story
3. Your Story
It’s like a mediator’s opening statement
How to start?
Start from the 3rd story –
like a mediator’s opening
Put their point of view first
You seem to think x, and I’m thinking Y. Can we talk about
this?
I have something I’d like to discuss with you that I think
will help us work together more effectively.
I’d like to talk about ___ with you, but first I’d like to
get your point of view.
I need your help with what just happened. Do you have a
few minutes to talk?
I think we have different perceptions about
___. I’d like to hear your thinking on this.
I’d like to talk about ___. I think we may have
different ideas about how to ____.
I’d like to see if we might reach a better
understanding about ___. I really want to hear
your feelings about this and share my
perspective as well.
Bad Apologies
People fail to acknowledge - (“for whatever I did”);
Use the passive voice - (“mistakes were made”);
Make the apology conditional (an apology “if mistakes have
been made”);
Question whether the victim was damaged or minimize the offense (an
apology “to the degree you were hurt” or “only a few soldiers were
involved);
Use a simple “sorry” instead of acknowledging responsibility;
Apologize to the wrong party or person;
Apologize for the wrong offense.
An Effective Apology
1. A valid acknowledgment of the offense
2. An effective explanation
3. Expressions of remorse, shame, and humility
4. A reparation of some kind
by Aaron Lazare
Apology Research
Full apology - much more likely to settle
(73 percent of the cases),
Partial apology – cut settlement rate in 1/2
(35 percent)
No apology is better than a bad one –
(52 percent settled without an apology)
Jennifer K. Robbennolt (U. Illinois) - reactions of 145 professionals
to situations involving some form of apology, mainly a legal
settlement after an accident.
Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 MICH. L. REV. 460 (2003-2004).
A book about
Conflicts
in
our closest
relationships
Family
Friends
Co-workers
Spouses
The Baby Self
v.
The Mature, adult Self
The “Shut Up”
approach
You: “I’m sorry I’m late.”
They: “You’re always late.”
Do not defend yourself:
At most, you repeat: “I’m sorry.”
Then say no more.
Guidelines
• Think: Stop talking if there is nothing to be gained
(and lots to be lost).
• Don't repeat yourself. Make your point once (and sit
down / shut up).
• Don't take their bait. Don’t get sidetracked.
Ignore it. "You're just like your father" or "You always say that!"
• Or, if you are giving advice, give your advice just
once and move on. Don't require them to recognize it as
the most brilliant suggestion ever.
So, simply
Shut Up!
Disengage. Stop. Leave
it alone
The vast majority
of adult arguments
between close friends
or couples
do not end with instant
solutions
(if they end at all)
Looking for additional reading or listening?
John Barkai
University of Hawaii Law School