If I was starting a library about negotiation and could afford only one book, it would be “The Science of Settlement: Ideas for Negotiators” by Barry Goldman, adjunct professor at Wayne State University Law School. In a mere 167 pages — 177 if you count the glossary — Professor Goldman provides a wealth of information about the frequently illogical and occasionally absurd ways in which the human mind tends to approach risk analysis and the decision-making process. Citing countless examples and recounting dozens of actual experiments, the results of which will surprise and sometimes confound you, Professor Goldman artfully explains why negotiating behavior is often irrational and identifies effective tools and strategies to use when confronting such behavior.
One of my favorite sections is Professor Goldman’s discussion of reactive devaluation, which he defines as “the tendency to undervalue or reject a negotiation proposal, irrespective of its merits, because it is perceived to come from the enemy.” In other words, we tend to distrust our negotiating opponents so much that we reflexively assume any proposal they make must be bad for us.
Reactive devaluation is premised, in part, upon the assumption that there is a fixed-pie to be distributed and that negotiations will necessarily be zero-sum, i.e., one more for you means one less for me. But is that always true?
If I may borrow one of Professor Goldman’s hypotheticals and embellish upon it to some degree, imagine that an attorney named Adam has been asked by his wife to stop at the market on his way home from the office to pick up a few things, including some apples and oranges. Arriving just before the market closes, Adam heads straight to the fruit section, where he bumps into Mandy — a high-profile litigator, with a well-deserved reputation as a ruthless negotiator. Adam has previously opposed Mandy in three highly contentious matters, and each time Mandy negotiated the far better deal.
Mandy, too, has apples and oranges on her shopping list, but she and Adam discover there are only six apples and six oranges that remain. Adam offers to divide the fruit evenly — what Professor Goldman would refer to as the prominent solution — with each taking three apples and three oranges. Acknowledging that Adam’s proposal is fair and equitable, Mandy accepts. But was a better resolution possible?
Unbeknownst to Mandy, Adam would actually prefer to take more of the apples. However, he chose not to reveal this fact to Mandy, anticipating she would try to take advantage of the information by squeezing — sorry, but you can blame Professor Goldman for that one — an extra two or three oranges from Adam in exchange for just one extra apple.
A moment later, to Adam’s surprise, Mandy spontaneously offers to give Adam more apples in exchange for more oranges. Assuming it must be one of Mandy’s typically disingenuous negotiating ploys and not wanting to fall for her tricks yet again, Adam reactively devalues Mandy’s offer and rejects it — albeit politely — for that reason alone.
If Adam and Mandy had only trusted one another enough to reveal their underlying interests, they might have found a more optimal solution. They would have discovered that a better outcome for both would have been for Adam to take all six apples and Mandy to take all six oranges, because Adam’s wife had promised to provide half a dozen caramel apples for the next day’s school carnival and Mandy’s daughter had volunteered to bring six sliced oranges to share the next day with her soccer team during half-time.
Unless the parties are willing to reveal their underlying interests to one another, win/win solutions seldom present themselves. Reactive devaluation and the assumption of a fixed pie tend to be so overpowering that the parties fail to even contemplate there might be solutions that are more mutually beneficial.
As demonstrated by the parable of Adam’s apples — sorry, again, but this time I’m to blame — and Mandy’s oranges, the proverbial pie might not be fixed after all, depending upon how it is sliced. If the parties take the time to divide the pie for everyone’s benefit, they might just find that everyone gets more — at least in a qualitative sense — than they were otherwise expecting. In other words, sometimes it makes sense to compare apples and oranges because the comparisons might just yield more fruit.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal