(for a different view, see The Method to Their Madness at the New York Times)

To assess the wisdom of a strategy to fail, I asked arbitrator and mediator Joshua Javits to weigh in on our series concerning the negotiated resolution of the current federal budget crisis.

In June, I appeared on Minnesota Public Radio with Javits to discuss options for breaking impasse in the Minnesota state legislature over similar budget issues. Javits, the former chairman of the National Mediation Board and current chair of the Grievance Committee of the International Monetary Fund agreed to share his experience and wisdom on the national budget crisis negotiations here with our readers today.

I asked Javits to first suggest an optimal negotiation strategy where one party – here, the GOP – is willing to risk catastrophe in the hope (or fervent belief) that the small government revolution they seek will be worth the short term damage to the economy if the debt ceiling is not raised.  Javits surprised me by mentioning the history of the rise of communism in Russia.

continue »

As the federal budget deadline nears, I am seeking the advice and analysis of some of the country’s most prominent negotiation gurus to illuminate the motivations driving the on-again, off-again bargaining sessions between the Democrats and the GOP.

As Harvard professors Max Bazerman and Deepak Malhotra advise in their must-read Negotiation Genius, before concluding that our negotiation partners (or elected representatives) are crazy or evil, we should be asking ourselves whether they have unknown interests, are operating under hidden constraints, or are ignorant of facts of which we are aware.

These are the issues I’ve asked Adam Galinsky, Professor of Ethics and Decision in Management at the Kellogg School of Management, Northwestern University, to address.

What are the interests driving the federal budget negotiations?

Professor Galinsky: The parties’ interests exist at three levels: principle, prosperity, and politics.

Continue reading here.

The Defense Procurement and Acquisition Policy Department Negotiation Preparation flow chart, suggests that negotiators

• tailor the negotiation team to the situation
• identify negotiation issues and objects
• identify your bargaining partners’ history and probable approach
• assess bargaining strengths and weaknesses
• identify negotiation priorities and potential tradeoffs
• determine an overall negotiation approach
• prepare a negotiation plan
• present the negotiation plan
• preparare a negotiation agenda

This is as good a list of negotiation preparation steps as I have seen anywhere and it would be well to have it by your side whenever you negotiate anything more important than who should cook dinner and who puts out the garbage tonight.

Continue reading here

In case you do not personally know someone who is dependent upon Medicare and whose circumstances could be severely impacted by the current federal budget negotiations, now you do.

Is there any chance your story will end where Joel’s does? Do you believe you’ll be able to afford Blue Cross premiums forever? Or that Blue Cross, or another health insurance provider will pay for skilled nursing facilities as long as you need them?

If you are a woman nearing retirement, the possibility that you will age in comfort is far less likely than the chance you will live out your final years in poverty. Presently, the U.S. poverty rate for people 65 and over is 9.7 percent — that’s 3.5 million people who, if they are single, are living on less than $10,289 a year. Two-thirds of women over age 65 rely on Social Security as their primary source of income. Consequently, women are twice as likely as men to live out their golden years at or below poverty levels.

So, yes, this story is about negotiating with health care bureaucracies, but it is also about the way in which the richest country in the world treats the weakest members of the human family, family members who could well be us.

Continue reading here (which is also where all the links are)

Back from our fourth of July weekend, I leaned over to click the “play” button on our answering machine.

In Russian-accented English, the news everyone fears to hear rose from the machine. “My name is Oksana at Cedars-Sinai. I’m calling to talk about Joel. Please call me back.”

I’ve been here before and many of you have too. A loved one has been in an accident, is suddenly felled by a stroke or heart attack, or is in the final stages of a long decline. The last time the machinery of the American end-of-life bureaucracy ground into motion on my behalf was when my father began to die of Parkinson’s disease, a heart-breaking series of events I chronicled in “real time” here.

But no prior end-of-life experience prepares you for the next. Dad was in his 80s, remarried, living in a low-slung suburban Southern California ranch-style house attended by a 24-hour caregiver who had for years been his aid and companion. He had Blue Cross, retirement pay and a stream of income from rental property he’d amassed in the San Fernando Valley in the ’60s and ’70s.

Joel is my ex-husband. We were divorcing just as George H.W. Bush was beginning his Presidency in 1989. During those years, I met and married my new husband, changed jobs, pursued a new career, made new friends, and lived a busy privileged life.

Continue reading here.

As sociologist Charles Tilly explained in his book, Why? we fail to persuade when we’re talking past each other and we talk past each other when we’re using a type of reasoning different from that of our bargaining partner. I first heard of Tilly’s work from that great popularizer of social science research, Malcolm Gladwell (Here’s Why) after which I never argued my case or negotiated a deal in the same way again.

But First, Why Reason Giving is a Critical Negotiation Skill

In experiments on reason giving, researchers have found that we are far more likely to persuade people to accommodate us if we give them a reason to do so even if the reason makes no sense whatsoever. In one experiment, students were asked to cut in line at Kinkos. One group was instructed to give no reason. Another was told to give a good reason (I’m late for class). The last was directed to give an irrational reason (because I want to).

Continue reading here.

A mistake that lawyers sometimes make is failing to ask for what they want.  If they do want an evaluation they can ask for it when they hire the neutral. There are processes variously known as neutral evaluation, non-binding arbitration, or early case assessment which are designed specifically for this purpose.  They can be used independently or they can be combined with mediation.
 
I was once hired to give a neutral evaluation in a commercial real estate case.  The parties told me at the outset that while they were interested in exploring settlement they were really interested in my opinion on the merits.  So we conducted a mediation that included a neutral evaluation.  Not only did this meet their needs, the evaluation was given in a confidential setting and could not be used as evidence if they did not settle.
 
The point is that both parties wanted the process to be evaluative.  It was not a situation where one party was expecting the mediator to be evaluative and the other party wanted the mediator to refrain from doing so.
 
When parties hire a mediator, they need to be of the same mind about the process. Otherwise the result will be like splitting a steak with your partner when one of you likes it rare and the other likes it well done. Somebody is going to get indigestion!

Naivete and Cynicism in Negotiations and Other Competitive Contexts by Chia-Jung Tsay, Lisa L. Shu and the great Max H. Bazerman. Executive Summary from Harvard Working Knowledge below:

In business and in life, it's important to strike a smart balance between naïveté and cynicism. Act too naïvely, and someone is bound to take advantage of you. Skew cynical, and you may miss out on new opportunities with good people. This paper discusses the decision errors inherent in leaning too far in either direction. Research was conducted by Chia-Jung Tsay, Lisa. L. Shu, and Max H. Bazerman of Harvard Business School. Key concepts include:

Naïveté is more than a glut of trust. More broadly, naïve behavior refers to a failure to make the best decision, due to a lack of consideration of other people's strategic and behavioral perspectives. We are likely to make naïve decisions when we don't think through the likely future decisions of other parties. A cynic, on the other hand, may avoid a business transaction due to an assumption that the seller's self-interested motives will be harmful to him or her-even if logic shows that the deal would likely benefit both parties. When people withhold from trusting others, they usually lack opportunities to learn whether their trust would have reaped rewards. But when they offer their trust and are subsequently burned, they learn hard lessons about trust. This unbalanced feedback breeds cynicism.

In laboratory studies, the best negotiators were those who had a tendency to think about the perspectives of others. However, most people lack sufficient perspective-taking ability. The researchers suggest that training mechanisms should be developed to increase that ability.

Full working paper available for download at the link above.

The Davos World Economic Forum

The paucity of women at the Davos Economic Forum despite how rich the ones who attended are as described in this post by Forbes staff writer Louisa Kroll, The Richest Women at Davos.

Women's Davos Wardrobe Dilemmas covered by Moira Forbes as an unfortunate but still critical factor for the display of power necessary to be a player at the World Economic Forum.

A photo gallery of the executive conferences women CEOs love best.

The Continued Assault on the Glass Ceiling

Aman Singh's post on Why So Many Top Women Don't Make it to Executive Leadership.

Jenna Goudreau's Jobs Outlook:Careers Headed for the Trash Pile

Five Reasons Your Boss Wants to Give You a Raise This Year (Gender Neutral)

Negotiating with Mattie Ross of True Grit (Gender Neutral)

Sponsorship, Not Mentorship, Can Greatly Narrow the Wage Gap

Kucinich and the Olive Pit in a World of Injustice (gender neutral)

First You Wake Up, Then You Negotiate (gender neutral)

Jealousy's Underhanded Contribution to the Wage Gap by our Gen-Y blogger Katie Phillips.

Provocative Posts and Articles

Bad Career Advice:Nice Guys (and Girls) Finish Last by Christine Scivicque

Study says Dads Should be Less Involved in Parenting by Forbes Staff Writer Meghan Casserly as well as her terrific article on Sexy News Anchors' Distracting Effect on Viewers who can't seem to recall the news disseminated by these attractive women!

There's lots more over at ForbesWoman but those are the articles and blog posts that caught my own attention this week. Put ForbesWoman on your newsreader whether you're male or female, because it's pretty clear that women's economic power is growing and attention must be paid. 

Thanks to @NeilDenny of Lawyer 1point9  for the head's up.

Priming Legal Negotiations is the winner of this week's Golden Asshole Award. /*  

Thanks to the Legal Writing Prof Blog for the head's up.

As I left for work one crisp, sunny April morning, I spotted a five-by-seven printed form on my car’s front windshield. The form’s message proclaimed, in large, bold letters, “youparklikeanasshole.” The form had a checklist of infractions like “two spots, one car,” “that’s a compact?” and “over the painted lines.”The bottom of the printed form said,

Parking is far too limited in our overcrowded streets and parking lots, and you happened to park like an asshole. Go to the above web site to see why someone else thought you parked like an asshole. Don’t be too offended, we all do it one time or another—it just so happens you got caught.

My next-door neighbor, who evidently put the note on my car, listed my infraction as “other” with a follow-up explanation written by hand: “You are parking too close to my garage. It’s hard for me to pull my truck in.” I studied the note for a few moments. I felt my heart start to pound and my whole body became uncomfortably warm. I wadded the note and tossed it. I was angry. When I arrived at work twenty minutes later, I was still angry. I told my co-workers about the note.

They all agreed with me; it was rude and inappropriate.

When I returned home that evening, I visited with neighbors who were not complaining about my parking. I showed them the note, now crumpled and dirty. They, too, became angry. One neighbor suggested exacting revenge on the note’s author by letting the air out of his tires. Another neighbor excitedly suggested something involving Crisco. Although I am a trained mediator, I became giddy about the prospect of getting even.

Perhaps it was a moment of self reflection that led me to question why I was even thinking of revenge. But that written demand evoked intense emotions in me and in my neighbors. We did not care about investigating appropriate responses or attempting to resolve the problem; we wanted to make my neighbor pay for his rude behavior. Instead of encouraging me to change my behavior in the way my neighbor requested, the note had an entirely different effect. The written demand prompted me to make my neighbor regret placing that note on my windshield.

This incident led me to question the legal demand letters lawyers write. I wondered if demand letters often evoke similar negative emotional reactions in their recipients. And, if so, do those emotions influence the recipients’ behaviors in ways that hinder settlement?

I'll be providing a template for a negotiation request letter later today.

And all kidding aside, this article should be required reading for every legal writing class in every law school in the country!

Cross-posted at The ABCs of Conflict Resolution Blog.

__________________

*/  The Golden Asshole Award is given once a month to the individual making the greatest contribution to reducing assholishness in the profession.

I have to tell you that I believe every one of our She Negotiates graduates understands and knows how to use the bullet point takeaways from Extreme Negotiations below.  Let me also say it's not enough to read about these techniques ~ you must practice practice practice practice.

Get the Big Picture

• avoid assuming you have all the facts
• avoid assuming the other side is biased but you're not
• avoid assuming the other side's motivations and intentions are obvious and nefarious
• instead, be curious ("help me understand"); humble ("what do I do wrong?") and open-minded ("is there another way to explain this?")

Uncover and Collaborate

• avoid making open-ended offers ("what do you want")
• avoid making unilateral offers ("I'd be willing to . . . "
• avoid simply agreeing to or refusing the other side's demands
• instead ask "why is that important to you?"
• proposed solutions for critique ("here's a possibility - what might be wrong with it?")

Elicit Genuine Buy-in

• avoid threats ("you'd better agree, or else . . . "
• avoid arbitrariness ("I want it because I want it."
• avoid close-mindedness ("under no circumstances will I agree to - or even consider - that proposal"
• instead appeal to fairness ("what should we do?")
• appeal to logic and legitimacy ("I think this makes sense because . . . ")
• consider constituent perspectives ("how can each of us explain this agreement to colleagues?"

Build Trust

• avoid trying to "buy" a good relationship
• avoid offering concessions to repair actual or perceived breaches of trust
• instead explore how a breakdown in trust may have occurred and how to remedy it
• make concessions only if they are a legitimate way to compensate for losses owing to your nonperformance or broken commitments
• treat counterparts with respect, and act in ways that will command theirs.

Focus on process

• avoid acting without gauging how your actions will be perceived and what the response will be
• ignoring the consequences of a given action for future as well as current negotiations
• instead talk about the process ("we seem to be at an impasse; perhaps we should send some more time exploring our respective objectives and constraints."_
• slow down the pace:  ("I'm not ready to agree, but I'd prefer not to walk away either.  I think this warrants further exploration.")
• issue warnings without making threats:  ("unless you're willing to work with me toward a mutually acceptable outcome, I can't afford to spend more time negotiating")

I'll be blogging on each one of these steps in the negotiation process for the next two weeks so stay tuned.

Cross posted at She Negotiates and the ABCs of Conflict Resolution.

• THE ASK - name your price first and to make your first number aggressive but not outlandish
  • you need at least three numbers to negotiate with - high, medium and bottom line
  • start with your high number
  • consider linking your high number to performance contingencies, i.e., if I do X and Y as I've promised, then my total compensation for 2011 will be Q; these performance contingencies can also be tied to the company's performance in 2011.
  • don't give all your reasons for your raise at the same time; you need a good reason for each of your high, medium and bottom line numbers - each round of negotiation requires "a number and a reason"
  • when making concessions, consider trading items of high value to you and low value to your employer, i.e., it doesn't cost your employer anything to let you work from home one or two days a week but it may well save you significant monies over the course of the year in transportation and incidental costs (this is called "log rolling")
  • go to your medium number reluctantly and stress that you are making a concession and expect reciprocity
  • go to your bottom line number only when you've completely run out of options

• PRETEND YOU ARE NEGOTIATING FOR SOMEONE ELSE
  • we women have a particular challenge in negotiating for ourselves because asking for ourselves contravenes gender norms
  • the research shows that we negotiate as effectively as men when we're negotiating for another but not when doing so for ourselves - so make yourself your own client and go out there and get the best deal for her

Click on the ForbesWoman link for the newest "She Negotiates" columnist, Roxana Popescu who here not only learns the lessons of street haggling, but who "outs" herself as the Daily Asker!

Nothing, and I mean nothing makes me happier than watching this new generation of women grow. Please drop by the Daily Asker and ForbesWoman to meet the brilliant and inspirational Roxana!

What does this man have that you don't?

A year-end 2009 salary of $21,340,547 during one of the worst year's in the history of his industry ~ banking.

Listen!  The recession is just another excuse for not paying you what you're worth.

How do we know?

Because the most effective negotiators on the planet ~ corporate CEO's ~ are finding the downturn to be the best time to squeeze every last living dollar out of their employers.

If they can do it, so can you!

 Here's the evidence:

	Bank of America Corp. Thomas Montag 2009 Total Compensation: $29,930,431		JPMorgan Chase & Co. James Dimon 2009 Total Compensation: $9,274,494
	Citigroup Inc. John Havens 2009 Total Compensation: $11,276,454		Morgan Stanley Walid Chammah 2009 Total Compensation: $10,021,969
	The Goldman Sachs Group Inc. Lloyd Blankfein 2009 Total Compensation: $9,862,657		Wells Fargo John Stumpf 2009 Total Compensation: $21,340,547

 Whhaaaaaatttttt? do these men have that you don't have?

• Social networks with rich and powerful people who sit on their Boards of Directors and influence policy makers and Wall Street power brokers
• The self-created illusion that they are "too big to fail" /1
• The persuasive argument that only they, with their unique combination of experience, education, knowledge, savvy, can-do-spirit, and leadership qualities can pull these banks out of the sinkhole of the recession.
• Friends in very high places.
• Chutzpah and shamelessness (not that we'd want to encourage this second character flaw in our readers).
• Self-satisfaction.
• Entitlement.
• An employment history of asking for and receiving increasing levels of compensation based upon their salary negotiations at every career point possible (and every career point impossible)
• the demonstrated ability to produce results (our readers do possess this strength but haven't used it to their greatest advantage yet)
• the tendency to measure their market value by their value in the hands of their employer, not by what they "need" or what they are "worth" according to some internal metric that depends upon how they feel about thier accomplishments.

__________________

1/  This is where collective action comes in.  When we aggregate together America's employees, small business owners and homeowners, we get a non-corporate "entity" that is waaaayyyyyy bigger than some little piss-ant bank and it is we who are too big to fail.

Can we afford not to learn and teach these skills?  Cross-posted at She Negotiates.

At 8 PM Women on the Move gets down to business with attorney Victoria Pynchon, author of the Settle It Now Negotiation Blog, who has been called a “master of conflict resolution and deposition skills.”

Victoria recently became a regular contributor to Forbes.com’s “On the Docket” column.

You can call in with questions! 

Call-in Number: (347) 857-2102

Here's a piece I missed in April on real litigation filed over virtual property in Second Life.

Architect David Denton spends much of his time on a lush tropical island, where he experiments with cutting-edge building designs and creates spaces for artists to showcase their work.

Never mind that the island only exists in the virtual-reality world of Second Life, a popular online venue where people interact via digital avatars. Denton, 62, said he purchased the island for about $700 — real money, not virtual cash — from its former owner, and considers it his property.

Here's the thought this article triggers.  If 90% of all litigation involving people (I'll skip corporate litigation and litigation brought to vindicate rights such as that declaring Prop 8 unconstitutional) will end with a retired Judge telling the people that litigation is too expensive and a jury trial too uncertain for them to bear, why don't we just litigate virtually (with Linden dollars!) giving the parties the experience of litigation that will eventually drive them to settlement?

I'm sure some smart programmer can come up with an algorithm for most personal disputes, including both factual templates and the application of simple legal principles.  A "ticker" could keep track of the dollars your virtual attorney is billing on your law suit's screen everyday.  Continuances, discovery motions, pre-trial proceedings and depositions could all be simulated.

Then the parties return from the virtual life of Second Life Litigation and sit down in the old fashioned way to negotiate a resolution to their dispute or, if necessary, hire a village elder trained in conflict resolution, sometimes called a mediator, to help them do so.

I asked one of my consulting clients for a testimonial yesterday.

"Anything," she said, "it's genuinely changed the way I do everything.  It's not just the shift in my business relationship with [BigBiz, Inc.].  I dumped a boyfriend last week because of our conversations!  So, seriously, what would you like me to say?"

My client and I, like the few women commercial litigation clients I had during my twenty-five years as a lawyer (2%?) were quickly becoming friends.  And I was proud of her.  Truly proud.  Like a parent would be.

"I'm proud of you," I finally said, even though I'd been thinking it for weeks.  "You've shifted the power in your working relationship and that was difficult to do.  You were persistent.  You're a first class learner.  And you've been brave."

She laughed, the way we women do when we're praised, wanting the moment to pass instead of savoring it a little, particularly when we know deep down we've genuinely achieved something important in our own lives and careers but don't want to appear self-satisfied.

So I said it again.  "I'm really proud of you.  You've done great work and you never gave up.  You didn't fold to the power of BigBiz, Inc.  You stood up for yourself."

This is a powerful woman and she was powerful long before I met her.

Still.  It takes courage.  Don't for a moment believe that it's just you.  Yesterday at my Forbes "On the Docket" blog, I wrote about women lawyers who were angry about being bullied out of their "origination" credit.  "Origination" is the credit you get for bringing clients to the firm and sometimes for keeping them there simply by being damn good lawyers.  They feel initimidated and they're some of the most powerful women in the country.

"It takes courage," I said again to my client.  "Most women think it's them.  They believe they're the only ones who feel inadequate to the task of popping their head into the managing partner's doorway to say, 'I want to talk to you about sharing the origination credit for the work we've done for Major Petroleum Company, Inc.'"  We're all afraid of asking.  Hillary Clinton's afraid of asking.  Sure, Clinton can run for President, but I'd wager a cool thousand that it's not easy for her to ask for a raise."

"And practice," my client offered.

"Oh lord yes, practice," I responded.  "And here's the thing.  We tut-tut and shake our heads over the failure of citizens to confront their governments about genocide.  What were the German people thinking happened to all their Jewish neighbors?  They knew they'd been sent to camps and they knew they were being executed and starved to death.  Why didn't they do something?"

They were frightened.  We're not talking about blowing the whistle on corporate wrong-doing for which we might lose our jobs, disable ourselves from paying the mortgage and encounter long-term unemployment.   Any German who said, "hey, wait a minute - you can't put Jews in camps" was liable to be imprisoned and executed.  Any ordinary citizen who did what Miep Gies did in a effort to save Anne Frank's family put her own life and that of her family at risk."

"That's why we call them heroes and award them metals for bravery and uncommon valor.  If I do not practice standing up for myself and for those who don't have a voice here and now, I won't learn the lessons or develop the strength of character to stand up when the Nazis march into town."

"But my question," my client reminded me laughing.  "What do you want me to say?"

"I want you to say that my consulting transformed your entire life in addition to getting you the business deal you wanted." 

"In your own words, of course."

The next life-altering She Negotiates month-long online coached negotiation class begins on July 19.  That's next week.  When, if ever, will you be more ready to stand up, speak up, and begin to earn what you know you're worth?