In this post, we are going to look at the two fundamental forms of negotiation.The first form of negotiation, and the one that is most familiar to lawyers, is called distributive negotiation. In distributive negotiation, the parties are negotiating how to divide or redistribute things. Thus, in a lawsuit, negotiation is often about how much money the defendant will pay the plaintiff for the case to go away. This type of negotiation is called distributive because value is being distributed from one party to another. The second form of negotiation is called integrative negotiation. In integrative negotiation, the parties are looking for ways to expand their options and create value. In contrast to distributive negotiation, integrative bargaining involves problem-solving and value enhancement. An example of integrative negotiation might occur in a lawsuit involving two businesses over breach of contract. While the parties might negotiate for a fixed payment to settle the claim, they might also find a way to expand, and renew, their business relationship so that both sides benefit from the negotiation. Sometimes you hear the terms zero-sum and win-win. These are important terms to understand in negotiation and are often misused because they are misunderstood. In a zero-sum situation, the only way that I can gain is if you lose. In other words, there is no way for both of us to come out ahead or be winners. This is the pure definition of competition because in competition, there can only be one winner. Distributive negotiation is often viewed as a solution to a zero-sum problem. But a zero-sum problem confronts us with a fundamental strategic problem in negotiation. You might have already come across this and wondered about it. The dilemma is “Do I compete and play hardball?”or “Do I cooperate?” The problem is this: If I am too competitive, I will blow a chance for settlement.
But if I am too cooperative, I might give up too much. This is the fundamental dilemma facing every negotiator.
How do I avoid impasse, but not give up everything to get a deal? Sometimes, a highly cooperative approach, such as integrative negotiation can foster a deal. Other times, a more competitive approach, such as distributive negotiation, is more effective. The takeaway is that the nature of the problem dictates the negotiation process to be used. As long as the conflict remains centered on things and is not too emotional, distributive negotiation and evaluative mediation will tend to work. However, distributive negotiation is not efficient or effective at high levels of conflict or when emotions are in play. In these kinds of disputes, either traditional or facilitative mediation is often needed to de-escalate the emotions before there can be distributive bargaining. It is important for you to remember these two principles:
• As long as the conflict remains emotional, integrative negotiation processes are effective and efficient.You should not be surprised to know that most negotiations involve emotions and most negotiations involve things. Therefore, you must be skilled at both integrative and distributive negotiation. You must also be comfortable with evaluative, traditional, and facilitative mediation processes because a good mediator will use all three in a given process.
• Integrative negotiation is not efficient or effective at low levels of escalation or when things are solely in play.
Remember, the best way to win the game is to call it yourself.Douglas E. Noll
Better still, change the game completely.
Mediator, Author, and
California Lawyer 2012 Attorney of the Year
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