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The Importance of Post-Negotiation Evaluations

By Charles B. Craver

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Lawyers and business people negotiate with others every day. They interact with colleagues within their own firms, they deal with prospective and current clients, and they negotiate on behalf of their companies and clients with outside parties. This is one of the most critical skills employed by such persons. They assume that they must be doing all right, and they never stop to ask themselves how they are actually doing and whether they could be doing better. If individuals hope to enhance their negotiation skills, they need to take the time after their more significant interactions to ask themselves how they did. How did the different stages of the negotiation process develop? Were they thoroughly prepared? Did they use the Preliminary Stage to establish rapport with the other side and the beginning of their interaction to create a positive bargaining environment? Was there an efficient Information Stage during which the parties articulated their different positions and explored the interests underlying those demands and offers? Did they listen carefully for verbal leaks which undermined what the other side seemed to be saying and watch for relevant nonverbal signals? How did the parties close the deal? Did they resort to the Cooperative Stage to maximize their joint returns?

What bargaining tactics did they employ, and how did the other side counter them? What techniques did the opposing party use, and how did they work to counteract those tactics? Were their initial aspirations too high, appropriate, or too low? There is a direct correlation between initial aspirations and final terms, with persons with higher goals achieving better terms than people with lower goals. Were their opening offers too high, appropriate, or too low? Did they begin with “principled” offers they could logically explain to the other side? It is critical to recognize the impact of “anchoring” on bargaining interactions. Individuals who begin with offers that are generous to the other side actually induce those persons to move away from them psychologically due to the fact they begin to believe that they will obtain better terms than they initially anticipated. On the other hand, negotiators who begin with offers that are less generous to their opponents induce those people to move closer to them psychologically due to the fact they think they will not do as well as they hoped.

Did they encounter any deceitful tactics that went beyond mere puffing or embellishment? It is clear that under the Model Rules of Professional Responsibility, lawyers may not knowingly misrepresent material law or fact. A similar restriction is imposed upon business persons under common law rules of fraud. Nonetheless, under both the Model Rules and doctrines governing fraud, certain representations are not considered statements of material fact. Representations concerning one’s settlement intentions – how low or high one side is willing to go – and statements about the manner in which one values the different items being exchanged are considered non-material information. It is thus acceptable for negotiators to over- or under-state the value items for strategic purposes and to indicate that they have to have more or can only offer less than their true positions. Beyond these two areas, however, it is entirely improper for negotiators to misrepresent other matters that are material to their interaction. If they do so, they or their clients may be sued for fraud, and they may be professionally disciplined. Even more importantly, they may injure their reputations in a manner that will make it difficult for them to interact with others in the future. So much of what we do when we negotiate is based upon the belief that we can trust our opponents with respect to the items we expect them to discuss honestly. If we ever catch someone misrepresenting such issues, we are unlikely to trust them again – and we will tell others about their lack of integrity.

What did you do during your bargaining interaction that you wished you had not done? This question generally concerns mistakes we think we may have made. When our opponent does something we did not anticipate, we react quickly to counteract their behavior. In hindsight, we may picture something else we should have done that we should remember when we encounter such behavior in the future. What did you not do that you wished you had done? This question often concerns something the other side did that we did not feel we handled effectively. Studies show that this is the most important question negotiators should ask when they evaluate prior bargaining interactions. Although it is beneficial to eliminate mistakes we may have made in the past, it is especially helpful to think about what we should do differently in our future interactions. If we anticipate similar issues in our future situations and carefully plan how to deal with those specific issues or tactics, we are much more likely to behave in effective ways when such circumstances arise.

The Importance of Post-Negotiation Evaluations, By Charles B. Craver


Copyright © 2011 Charles B. Craver
Copyright ©   2011  The Negotiator Magazine
The Negotiator Magazine  (November, 2011)