If I was building a library about negotiation, I’d start with a book called “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 engages in risk analysis and decision-making.

Citing countless examples and recounting dozens of actual experiments, the results of which will surprise and sometimes befuddle you, Professor Goldman artfully and humorously explains why negotiating behavior so often seems irrational and he provides the reader with simple and effective tools and strategies to use when confronting such behavior.

Professor Goldman devotes 64 pages to the topic of “bargaining confounds,” which he describes as the “psychological factors that can enter into our negotiations and screw up our results.”

One of the bargaining confounds he examines is the concept 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.”

Reactive devaluation is premised, in part, upon the assumption that there is a fixed-pie to be distributed and that negotiations are therefore “zero-sum,” i.e., one more for you necessarily means one less for me. However, as the following example illustrates, that isn’t always the case.

Borrowing one of Professor Goldman’s hypotheticals, and embellishing it to a degree, imagine that an attorney — let’s call him Adam — received a text message from his wife asking that he stop at the market to pick up a few things, including “a dozen apples and a dozen oranges.”

Upon arriving at the market, Adam heads straight to the fruit section, where he bumps into his old nemesis Eve, a lawyer with a well-deserved reputation as a shrewd negotiator. Adam and Eve have opposed one another in highly contentious matters over the years and each time Eve has managed to outmanuever Adam and negotiate the better deal.

Coincidentally, Eve also has “a dozen apples and a dozen oranges” on her shopping list, but she and Adam simultaneously realize there are only twelve apples and twelve oranges left in the bins. Eve suggests that Adam take the twelve apples and that she take the remaining twelve oranges. His suspicions aroused, and wondering whether Eve knows something he doesn’t, Adam reactively devalues Eve’s offer and rejects it — albeit politely — for that reason and that reason alone.

Eve then explains she needs twelve oranges because it’s her daughter’s turn to bring orange slices to share with the soccer team during half-time. Not wanting Eve to “win” another one of their “negotiations,” and pointing out that his wife had asked him to bring home apples AND oranges, Adam respectfully declines Eve’s offer and proposes instead that they simply divide the fruit evenly, each taking six apples and six oranges. Rather than argue, Eve reluctantly agrees.

Feeling rather smug, Adam returns home to learn that his wife had made a commitment to provide a dozen caramel apples for the next day’s school carnival. In other words, the six apples he had given Eve were of greater value to his wife than the six oranges he received in return.

If Adam had only taken a moment to call or text his wife from the market, rather than reactively devaluing Eve’s offer and insisting she not “win” what he wrongly assumed was a zero-sum game, he would have discovered that Eve’s proposal had actually been in BOTH of their interests.

Unless the parties are willing to reveal their underlying interests to one another, win/win solutions seldom present themselves. Reactive devaluation — especially when mixed with the assumption of a fixed pie — can be so overpowering that the parties fail to even ask whether there may be other potential solutions that would be mutually beneficial.

As demonstrated by the parable of Adam’s apples & Eve’s oranges, the proverbial pie might not be fixed after all. If the parties take the time to consider other ways they might be able to slice the pie, perhaps they’ll discover there’s more for everyone — qualitatively speaking — than they thought. Put another way, comparing apples and oranges sometimes yields 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