da Silva, Paulo --- "Adversarial Bargaining in Negotiation" [2020] UNSWLawJlStuS 25; (2020) UNSWLJ Student Series No 20-25

	Home \| Databases \| WorldLII \| Search \| Feedback University of New South Wales Law Journal Student Series

Essay Question: Professor Ross Buckley argues that adversarial bargaining should not be neglected as a negotiation tool, especially when concluding negotiations based on Fisher and Ury’s principled negotiation approach. To what extent is adversarial bargaining still used as a negotiation tactic? How do principled-based negotiators adapt their negotiation style to either embrace adversarial bargaining or counteract its effects in negotiations?

I INTRODUCTION

“The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man”.^[1] Quoted from George Bernard Shaw’s play, Man and Superman, this quotation insinuates that in a conflict situation, the reasonable man would most likely find common ground with an opposing party; whereas, the unreasonable man would perpetuate the conflict until the other party succumbs to his way of thinking. In Act II of the play, the character Hector, defends his father’s honour by stating that “He’s not unreasonable. He is right from his point of view”.^[2] It is under this understanding and purview that the source and foundation of every conflict begins. People think differently, they have different values and different cultures.^[3] The cause of many conflicts therefore begin with people’s thoughts and the perception of their realities versus the perceived realities of others.^[4] Disputes resulting from these differences are thus inevitable,^[5] whether to progress humanity, or to alter a person’s point of view in the resolution of a conflict.

It is against this backdrop that this paper will review and discuss the various negotiation theories, styles and models. In particular, it will contrast Fisher and Ury’s principled negotiation approach with the adversarial negotiation tactics. This analysis will include the review of the some of the social and cultural driving factors that perpetuate a particular negotiating style. It will conclude with the identification of the required skills and cultural understanding that principled negotiators should adopt to incorporate adversarial negotiations into their repertoire. Ultimately, it will highlight the methods and tactics needed in negotiations to neutralise the effects of adversarial negotiation models used against them.

II NEGOTIATION TECHNIQUES

Prior to Fisher and Ury’s ‘Getting to Yes’ principled negotiation approach, Mary Parker Follett in the early 1900s, postulated three strategies of resolving conflict, namely: “domination, compromise and integration”.^[6]

A Domination

Domination as a strategy has formed the basis of disputes and negotiation outcomes from an early age. Domination is defined as the ability “to rule over”, or “control”.^[7] In negotiation terms it can be translated as a situation where only one side gets what they want.^[8] Acts of domination are evident throughout history. Colonisation was undertaken through a process of domination of local cultures and territories with the imposition of the European cultural rule. Wars have resulted from the assertion of dominion of one state over another. Slavery was the most abject form of domination. In all cases, and in line with the definition of domination, one of the parties gained a benefit, whether it was land, labour, taxes or servitude, at the expense of another party.

From a negotiation perspective, domination is also referred to as positional,^[9] adversarial,^[10] distributive,^[11] hard,^[12] or competitive bargaining,^[13] where the word bargaining can be interchanged with negotiation. In 2019, Professor Carrie Menkel-Meadow refers to adversarial bargaining as “The Winner Takes All Model” when analysing Donald Trump’s approach to negotiation.^[14] Regardless of the terminology used, the results from using this negotiation tactic can only be characterised as win-lose scenarios.^[15] In essence, adversarial bargaining pits one party against another.^[16] Unlike in colonisation or slavery, both parties have the option to engage in adversarial tactics. Thus, the aim of the negotiation process is for each disputant to maximise the best possible result by taking the larger share of the fixed and limited resources.^[17] Accordingly, the disputants are at war, they are adversaries where the triumph of one party will result in the loss for the other.^[18] In order to succeed, adversarial negotiators focus their attentions on their positions to claim value.^[19] These positions are based on their demands, their needs, their specific desired outcomes,^[20] with parties requesting excessive offers and providing lowball counteroffers.^[21]

While this principle may seem unjust and unfair, especially to the losing party, one should consider that the Australian legal system, as with other jurisdictions, operates on a win-lose adversarial basis.^[22] The judicial system has not been established to amicably resolve the problems between the litigants.^[23] The judges and juries find for, or against the plaintiff or the defendant. Lawyers are trained to operate within the legal system and are therefore competitive in their approach, making them natural proponents for the adversarial system.^[24] Roger Fisher likens lawyers to soldiers who have little to no regard for the opposition, and no compunction to soften the negotiation approach.^[25] They’re trained pit bulls with the instinct to fight.^[26]

Not only lawyers use adversarial tactics in negotiations. In many instances, ordinary people engage in adversarial negotiations to resolve their disputes relating to contracts, employer and employee relationships and divorces to name a few. An example of adversarial bargaining in the contracting environment, depicts a conflict between supplier A and customer B, which arose at the conclusion of an engineering contract (“Example 1”).^[27] In this example, customer B claimed damages of AUD 450,000 for late delivery on some components. Supplier A contractually assessed that these damages could not have exceeded AUD 20,000. In order to force a resolution, customer B withheld the final payment of AUD 950,000. In doing so, customer B took an adversarial position. Not only did customer B maximised their claim with an extreme demand, but they also created a situation which undermined and claimed value from supplier A.^[28] They purposely “concealed information” by not providing the required justification for their large claim and the reasons for withholding a large sum of money which created a cashflow dependency on supplier A. Their intention was to “outwait” supplier A as a negotiation tactic.^[29]

B Compromise

Follett’s second strategy for resolving disputes involves the process of compromise where both parties to a dispute give up some of their position to meet in the middle.^[30] In order to achieve a satisfactory goal of meeting in the middle, the parties generally set an expectation that is much higher than they actually require.^[31] From the onset, the negotiation commences with an adversarial flavour. From a judicial perspective, a resolution to a conflict resulting from compromise is considered to be a successful result.^[32] This may be true considering the judicial alternative of establishing an outright winner or loser.^[33] It certainly confirms the adage that a good negotiation is where both parties walk away dissatisfied with the result.^[34] While lawyers tend to see the negotiation as a compromise process,^[35] the negotiation may not necessarily progress with adversarial tactics, but rather in a manner that simplifies the negotiation to a set of economic realities.^[36] Irrespective of the process, Follett considered that the prospect of a compromised solution serves only to maintain the peace.^[37] The substantive issue which led to the conflict, and which was solved using a compromise tactic, remains unresolved. Notably, there is agreement in the literature suggesting that compromising is not a good method to resolve disputes.^[38] The process of compromise negotiation tactics is therefore seen as a soft bargaining approach where concessions are made,^[39] usually to the detriment of the one party who is usually softer than the other.^[40] Referencing Example 1 above, given the large sum of money being withheld to ransom, customer B’s adversarial negotiation strategy was to outwait supplier A. Dependant on supplier A’s available cashflow, supplier A could have been forced into a negotiated compromise given their soft negotiation position.^[41] Another example of a negotiation with a compromised outcome is provided as Example 2. Towards the conclusion of an engineering contract, supplier C issued customer D a AUD 28 million claim for additional labour support needed to complete the project.^[42] The submission of the claim was made in line with the contract provisions, therein immediately stating the adversarial position of supplier C. Given that dispute resolution clauses found in contracts tend to be adversarial instruments, customer D was able to issue a counterclaim against supplier C which defined the negotiation battle lines. Following many failed legal represented meetings, a mediator was introduced to assist with narrowing the differences between the two parties. Thus, the process of compromise negotiations began. In addition, supplier C’s negotiation team was supplemented with a representative from its overseas headquarters. The intention was to resolve the negotiation impasse that supplier C had with one of its strategic global customers. By introducing the various players, the labour claim was settlement at 57% of the initial claimed value as compromised result.

C Integration

The third and final strategy of negotiation introduced by Follett is the concept of integration. This concept was reintroduced by Fisher and Ury’s release of their book titled Getting to Yes in 1981.^[43] The process of integration or, as Fisher and Ury define it, ‘principled negotiation’, is to understand and then focus on the parties’ desires or interests.^[44] In aligning these interests, the need for domination and compromise is no longer necessary, to achieve a “wise agreement”.^[45] This tenet proposed in Getting to Yes, builds on Follett’s view of “creatively seeking a mutually satisfactory result” between the disputing parties.^[46]

Principled negotiation offers seven essential steps in understanding and preparing for negotiations.^[47]

1. Interests: Principled negotiation focuses on the interests that drives the dispute or conflict.^[48] Unlike adversarial bargaining where the negotiators do not share any information, principled negotiators are encouraged to share their interests,^[49] and show their cards to understand the real reason for the dispute.^[50] The intention is that the shared interests will serve as a basis for a shared victory.^[51] By understanding and working through their shared interests, the disputants can enlarge the proverbial pie by creating a number of potentially new solutions, which are mutually beneficial.^[52]

2. Relationships: Whereas the adversarial and compromising strategies use fear, mistrust as well as envy as tools to intimidate and alienate the opposing side,^[53] the principled approach, on the other hand, needs to “separate the people from the problem”.^[54] For principled negotiations to succeed, the disputants need to cultivate a relationship as a prerequisite for brainstorming and for the generation of creative options.^[55] Where relationships are strained, discussions are advised to mend the relations prior to the commencement of the negotiation.^[56] It is easier to deal with the unreasonable man, once we understand why he is unreasonable, which will only happen after a relationship is created allowing him to provide his point of view.

3. Options: In order to expand the pie, or increase the available resources, parties need to generate alternative and creative options.^[57] The underlying interests that are shared by both parties are the necessary building blocks that generate these options.^[58] During the joint collaborative brainstorming session, the options generated by either party should provide mutual gains.^[59]

4. Alternatives: Since not all principled negotiations will be able to deliver a satisfactory result, Fisher and Ury proposed a strategy called the Best Alternative to a Negotiated Agreement (‘BATNA’).^[60] The BATNA provides the negotiator with the knowledge of when to walk away from the negotiation in the event that the terms offered are less favourable than what the negotiator could get elsewhere.^[61] It can be likened to a negotiation circuit breaker. The party with the stronger BATNA has the stronger negotiating power.^[62] It therefore stands to reason that the other party also has a BATNA.^[63] Thus, one of the principled negotiator’s tasks is to determine the strength of the other party’s BATNA in relation to his own.

5. Legitimacy: The standard of fairness needs to be considered when weighing up the interests, options and alternatives generated in a negotiation.^[64] Also known as “objective criteria”, legitimate standards will help negotiators make wise and efficient agreements.^[65] In other words, if a negotiator asks for a slice of pie which is bigger than you are prepared to give, the legitimacy of his need or want, for the larger slice, needs to be qualified.

6. Communication: The entire process of negotiation is hinged on the manner of communication. Communication is not just providing information. It is actively listening to what the other party has to say, including the process of enquiring, paraphrasing and acknowledging the information being provided.^[66]

7. Commitment: After a suitable solution and negotiated agreement is reached, the manner in which the agreement is recorded and signed-off marks the parties’ commitment to that agreement.^[67]

Menkel-Meadow also proposes a problem-solving, approach which aligns itself to principled negotiation noting that parities need to have “complementary, as distinct from identical, value systems”.^[68] In order to succeed in negotiations, consideration needs to be given to external factors ranging from political and economic factors to psychological and moral factors.^[69] Thus, considering Fisher and Ury’s seven step program, the more external factors that can be satisfied in the various options, the higher the probability that negotiations will not breakdown over a single competing issue.^[70]

The concept of principled negotiation can be shown as Example 3.^[71] At the conclusion of a supply contract, supplier E released the supplied equipment for customer F’s collection. However, collection would only be allowed after full and final payment was made of all outstanding invoices. Following a period of two years, customer F had not yet paid the final invoice nor collected the goods. Under the adversarial and compromise negotiation tactics, supplier E would have already sued customer F, thereby incurring additional legal costs, or would have sold the goods to a third party for a lessor price to defray costs already incurred. Instead, supplier E opted for a principled approach. Discussions between supplier E and customer F highlighted the concerns and issues with payments as well as the parties’ underlying interests. A set of options were proposed and committed to by both parties. Ultimately, customer F will pay the final invoice and the accumulated interest at an annual rate of 6%. In return, supplier E will continue storing the products to allow the delayed site construction to commence and will not proceed with any dispute resolution or litigation process. Supplier E’s BATNA of repackaging the goods for sale to another customer remains intact. It is assumed that customer F’s BATNA is not very strong.

As a way of summarising and concluding the analysis of negotiation styles and tactics, Table 1 provides a simple example of two children arguing over a slice of chocolate cake and how this argument is resolved using the three tactics.

III NEGOTIATION STYLE DRIVING FACTORS

Having analysed the different negotiation tactics used to resolve a dispute, one needs to consider the reasons that negotiators would select one model over the other. Menkel-Meadow proposes in her problem-solving technique that external factors, such as legal, economic, political, social, psychological, religious and moral, need to be considered when negotiating.^[74] The literature proposes that lawyers are predisposed to an adversarial approach whereas a diplomat negotiating peace requires a different psychological disposition.^[75] To illustrate this point, a study aimed at teaching law undergrads the concept of problem-solving negotiation, showed that despite being taught the theory, many students still consciously and deliberately opted for an adversarial negotiation process.^[76]

Negotiation processes are also shaped by aspects such as race, gender, ethnicity and socioeconomic standing which influence the individual’s approach to negotiations.^[77] Negotiation is therefore “a complex human interaction” which when governed by cultural, social and legal elements have an impact on the negotiator’s tactics and nonverbal behaviour.^[78] Referencing the unreasonable man in the opening paragraph, in order to understand each party’s interests and motivation, it is necessary to gain some knowledge of his culture and social standing.^[79] Thus, an understanding of the other party’s culture provides an indication of their negotiation tactics, their nonverbal behaviour and their communication style.^[80] John Barkai, a Professor of Law at the University of Hawaii and a cross-cultural negotiator and mediator, relies on social psychology and organizational anthropology to understand cultural differences.^[81] Barkai references Hofstede’s six dimensions of culture to developed the necessary framework to distinguish between the various cultures.^[82]

A Power Distance

Power distance determines the level an individual accepts the difference of authority within a specific culture or group.^[83] The lager the Power Distance Index (‘PDI’), the more authority differential exists between that specific cultural group.^[84] When placed in context, cultures with a large PDI will teach their children to be obedient, whereas those with a low PDI will treat their children as equals.^[85] Eastern cultures, like Asia and Russia, have a high PDI,^[86] indicating that the person most likely to be sitting at the negotiating table will be a senior official of authority who can make decisions mandated by his position.^[87] In contrast, countries with a low PDI, generally Western cultures like the US, Australia and Germany,^[88] will appoint negotiators with a wide range of authority to settle a negotiation regardless of rank and the need for consultation with others.^[89] In Example 2, supplier C’s headquartered representative was a senior Japanese official who held the authority to settle the dispute. The negotiations, which had already observed multiple stumbling blocks, with entrenched positions and uncompromising demands by the Australian contingent representing supplier C, and the American team representing customer D, was settled within a week following the arrival of the Japanese representative. The failure by a senior official in a high PDI culture to reach an agreement is considered damaging to one’s reputation and is a powerful driver in a negotiation setting.^[90]

B Uncertainty Avoidance

Uncertainty avoidance refers to the level of uncertainty or ambiguity that a culture is prepared to accept in their lives.^[91] Cultures with a high Uncertainly Avoidance Index (‘UAI’), prefer to be masters of their own destiny and will therefore impose a large number of rules and laws to guard against any uncertainty.^[92] They are an ordered society compared to those with a low UAI. In low UAI cultures, conflict is a natural part of life and the population tend to be highly emotional,^[93] whereas high UAI cultures, like Japan, Portugal and Greece, prefer to avoid conflict altogether and are generally emotionless at the negation table.^[94] Therefore, negotiators from high UAI cultures will be calculating, mistrusting, calm and reserved. While they certainly have a well prepared BATNA, they will primarily seek to return the conflict to a level of certainty. Returning to Example 2, after a year of fruitless negotiation, the parties had already planned and started preparation to invoke the next phase of the dispute resolution clause which would have led to arbitration and then litigation. The uncertain outcome of an arbitrated or litigated solution was certainly a motivational factor for the Japanese negotiator, representing supplier C, to become involved. The Australia and the US negotiators, who embody a low UAI culture, tend to be less prepared and more volatile in their discussions, however, they are also more creative in the development of options.^[95] While in this example, both the US and Australian negotiators were well prepared and volatile in defending their positions, their unyielding approach allowed no opportunity for creative solutions.

C Individualism versus Collectivism

In this third dimension collectivist societies act on behalf and within a group, almost tribal, whereas individualist societies look primarily after themselves.^[96] Generally speaking, there is a great divide between Eastern cultures, who adopt the collectivist mindset, and Western cultures who are more individualistic in nature.^[97] Both the US and Australia have a high individualism score.^[98] To provide additional context to Example 1, customer B, an Australian entity who had made large losses based on their contractual obligations of their project, sought to recover those costs from as many suppliers as possible, whether earned or not. Therefore, with little to no regard for supplier A, or the merits of their actions, customer B placed their individual priority and needs above everyone else’s. In Example 2, the Japanese negotiator introduced a collectivist society’s perspective on the negotiation process with an intent to preserve and grow the relationship between supplier C and customer D. This contrasts with individualist societies, who prioritise their immediate gain in the negotiation as a strategy, potentially forsaking the relationship as noted in Example 1.^[99]

D Long-Term versus Short-Term Orientation

This dimension, also known as the Confusion Dynamism Dimension, plays a significant component in understanding a negotiator’s approach. Cultures with a Long-Term Orientation (‘LTO’) prioritise and invest in preserving relationships to maximise their long-term rewards, whereas cultures with a Short-Term Orientation (‘STO’) prefer quick results.^[100] Similar to the individualism versus collectivism dimension, the paradigm of west versus east is also found in this dimension. Western cultures have an STO whereas Eastern cultures have an LTO.^[101] This dimension places the outcome of Example 2 in somewhat of a contradiction. The Japanese representative agreed to a compromised solution, thus preserving the longstanding relationships, by opting for a ‘quick’ negotiated result. Similarly, the two STO negotiators, from the US and Australia, negotiated for over a year and achieved no result. The compromised solution of Example 2’s negotiations also provided both the STO negotiators the opportunity to ‘save face’ which is a key driver for Western cultures.^[102] Both parties were able to back down from their positions as a result of someone else’s decision making.

E Masculinity versus Femininity

The masculinity versus femininity dimension refers to the characteristics of gender within a society, specifically attributing assertive and tough qualities to males and modest and tender aspects to females.^[103] The feminine society engenders both males and females in that either can be modest and tender.^[104] Masculine societies tend to teach the children to play sports which have rules, objectives and roles with clear win-lose outcomes.^[105] Masculine societies will therefore incline towards adversarial negotiation tactics.^[106] Feminine societies opt for a consensus and a cooperative approach,^[107] associated with the principled negotiation strategy. This premise correlates with research into institutional framework on gender negotiation performances,^[108] it should be noted that a contextual understanding of the specific dispute plays a part in the interaction of the negotiation.^[109] This interaction is showcased in Example 2 where all the negotiators, the Australian, the Japanese and the American, belonged to the masculine society.^[110] Yet the Japanese representative, whose culture has the highest masculinity index of the three cultures, was the one who settled the negotiation through compromise, which is considered a femininity trait.

F Indulgence versus Restraint

Closely linked to the LTO and STO dimension, the latest inclusion into Hofstede’s cultural framework is the dimension of indulgence versus restraint.^[111] Indulgent societies are able to enjoy life, have fun, and are more optimistic and extraverted. The converse is true for restraint-based societies.^[112] Accordingly, the use of humour, or the rigidity of an agenda, in negotiations will have a different effect dependant on the culture of the negotiation participants.^[113]

The six Hofstede dimensions do not stand alone and have to be contextualised and analysed in total to determine the cultural characteristic of the negotiator. Although thousands of permutations exist, Hofstede considers the individualism versus collectivism dimension to be the most fundamental of all the dimensions.^[114] In addition, these dimensions do not take into consideration the impact socioeconomic, political and legal factors may have on the outcome of the negotiation.

IV THE TOOLS IN NEGOTIATOR’S REPERTOIRE

The analysis of Hofstede’s cultural dimensions provides a good foundation of the social and cultural driving factors that perpetuate negotiation styles. Understanding the cultural driving factors provides negotiators with powerful and emotive tools that enable them to facilitate and shape a negotiation, especially when facing an adversarial negotiator.^[115] These tools are necessary to resolve the conflict, not to exacerbate it by removing cultural diversity.^[116] A summary of the cultural dimensions and their predominant negotiation styles has been tabulated below to identify cultural traits that drive adversarial tactics.

Table 2 Cross tabulation of Follett’s strategies for resolving conflict and Hofstede’s cultural dimensions

Table 2 provides a clear indication that certain cultures still use adversarial negotiation tactics as their primary response based on their “values, attitudes and feelings”, which could, in effect, override any reasonable persuasive counterargument.^[117] In addition, cultures prone to compromised solutions will submit if they encounter a negotiator who takes an aggressive stance.^[118]

A Neutralise Adversarial Negotiators

Aggressive adversarial negotiators need to be neutralised by paying attention to Hofstede’s framework coupled with Fisher and Ury’s four-step process. This four-step process, which is the foundation of the principled negotiation seven essential steps in understanding and preparing for negotiations, is defined as: separating the people from the problem; focus on interests; invent multiple mutually beneficial options; and base results on objective criteria.^[119] The tools that negotiators can place in their repertoire for each of the adversarial cultural dimensions are:

1. Understanding the seniority and power interest of the high-power distance negotiators, such as the Japanese negotiator in Example 2, will assist in breaking down and neutralising an adversarial negotiator’s approach. It is likely that these negotiators will overlook substantive issues to maintain the appearance of authority.^[120] Negotiators therefore need to focus on the issues most important to the opposing high-power distance negotiator, which is the maintenance of their status and ego. The Japanese representative was appointed to resolve the conflict, which he did, despite leaving AUD 12 million on the table. In this context, Fisher and Ury’s point of separating people from the problem cannot apply, because the high-power distance negotiator’s driving factor is linked to the problem.

2. High-uncertainty avoidance negotiators need stability and consistency in the negotiation process. They will not trust negotiators who display unfamiliar behaviours.^[121] Therefore, to earn their trust, the opposing negotiator will need to establish a well-thought-out agenda and negotiation process. A calm and non-threatening approach with self-disclosure will enhance their trust in the process.^[122] It is also important not to put a high focus on Fisher and Ury’s technique of inventing options, as the high-uncertainty avoidance negotiators will not adapt well to new ideas which were not considered prior to the negotiation meeting.^[123]

3. Dealing with the individualist and short-term negotiators is as simple as understanding that different negotiators have specific needs.^[124] Lawyers representing their clients in negotiations will sometime have conflicting interests with their clients.^[125] Understanding these conflicting interests coupled with the use of Fisher and Ury’s model of generating mutually beneficial options, should work well to counteract the effects of the individualist adversarial approach. Similarly, short-term’ negotiators need quick results, but more importantly they need to be seen as having achieved an acceptable result, giving them personal respect and dignity.^[126]

4. Negotiators who originate from highly masculine cultures typify adversarial negotiators where “aggression, competition, and dominance are prime cultural beliefs” which will need to be neutralised.^[127] Hence, the application of Fisher and Ury’s principled techniques may not provide any resulting effect in the negotiations with high masculine cultures.^[128] Accordingly, Fisher concedes that in certain instances, positional bargaining is the best way to proceed.^[129] Therefore, negotiators dealing with high masculine cultures need to protect their interests and assets by insuring that decisions are not made to compromise their interests and assets.^[130] A well-structured and comprehensive BATNA is therefore required, as well as the willingness to walk away from the negotiation with a high masculine culture negotiator, if the result is not going to be advantageous.^[131]

5. Negotiators with cultural restraint tendencies take a long-term view of their interests and are not happy with any rushed solution or settlement.^[132] They are generally conservative people who will respond well to the Fisher and Ury’s principled negotiation technique as a whole.

It is also important to understand that in today’s globalised society, people often display multiple cultural tendencies and characteristics which influence their negotiation styles.^[133] Experienced negotiators may even have the ability to shift their orientation and tactics midway through the negotiation session due to these influences.^[134] Therefore, these neutralisation techniques may not be a definitive solution to adversarial negotiation tactics, but will assist the negotiator in the preparation for negotiations with adversarial negotiators.

B Adopt Adversarial Techniques

Not only should negotiators be able to negate adversarial tactics, but they should be equally able to incorporate them into their negotiation arsenal.^[135] Invariably, negotiators will find themselves using both principled and adversarial based tactics in a single negotiation setting.^[136] The premise of adversarial negotiation lies in dividing the fixed resource to benefit themselves.^[137] Through the use of principled based negotiation techniques, negotiators will routinely increase the availability of the resource which still needs to be divided.^[138] Adversarial negotiation techniques are therefore still required to assist in the division of this larger resource.^[139]

By the same token, Examples 1 and 2 provide some insight into the adversarial negotiation tendencies of contractual arrangements, where the principle of increasing the available resource does not apply. In both cases, the purchaser allegedly demanded more from the supplier than they were entitled to, with the full knowledge that the only way that the supplier could react was through negotiation, arbitration or litigation under the contractual framework. For this reason, when dealing with diverse multicultural Western societies, there is a likelihood that multiple adversarial cultural traits may present themselves at the same time during a negotiation.^[140] In these situations, the establishment of a well thought-out and structured BATNA, which is a general rule under the principled negotiation technique,^[141] will be rendered futile if the opponent’s BATNA is far superior.^[142] To overcome this superiority, it is necessary to reframe the opponent’s options, interests and standards in order improve one’s BATNA to be equal or better than the opponent’s.^[143] Fisher and Ury provide a technique and strategy to balance the equality of the BATNAs, called negotiation jujitsu. Jujitsu, as a martial art form, uses the opponent’s strength against them.^[144] It requires the negotiator to uncover and understand the premise behind his opponent’s position in order to uncover new interests and mutual gains.^[145] Lax and Sebenius offer a 3-D negotiation technique as an alternative to jujitsu negotiation.

3-D negotiation is considered an adversarial negotiation technique that changes the fundamental dynamics of the dispute.^[146] The change in negotiation dynamics could be useful when a negotiator has a very week BATNA and no viable options to consider. The 3D technique involves: replacing the negotiation partners with those who will consider left-field resolution options; or introducing a third party with similar interests to participate in the negotiation.^[147] With the introduction of a third player, additional scope can be introduced to the negotiation, the agenda can be altered and the negotiation tactics can be reset and modified.^[148] The intention of this technique is to strengthen one’s BATNA prior to the negotiation to a point where the opposite side will be more amenable to negotiate and settle the dispute. Consider Example 2, while the loss of AUD 12 million may have seemed excessive. The settlement also included an additional AUD 4 million contract for supplier C and a repetitive annual maintenance agreement that will continue for the next 20 years. The Japanese negotiator moved the negotiation away from the customer D’s Sydney offices to their head office in Houston. In addition, following the high PDI applicable to the Japanese culture, he changed customer D’s negotiation partners to more senior officials within the customer’s hierarchy in order to discuss not only the single contractual dispute, but the value of the relationship between the two companies going forward. Unwittingly, the Japanese negotiator introduced Lax and Sebenius’ 3-D negotiation approach.

V CONCLUSION

Hofstede’s theoretical framework confirms that adversarial negotiation tactics are widely used in a multicultural globalised setting. Whether these tactics are intentionally used by the negotiators, or whether they are an inadvertent predisposition of the negotiators’ culture, they will determine how the negotiation will proceed and in turn define its outcome. It therefore takes more than just time and practice to become an effective negotiator.^[149] An effective negotiator requires an understanding of the various negotiation tactics and the underlying social and cultural factors that negotiators use. Hence, in a multicultural globalised society, the modern negotiator needs to be adaptable and have the necessary tools to recognise, understand and manage the underlying social and cultural constitution of the opposing negotiator, for a mutually successful settlement.^[150]

George Bernard Shaw’s unreasonable man may not be that unreasonable after all if one considers the true motive and intention behind his point of view. The challenge in a negotiation setting is to uncover his interests and settle his concerns. Fisher and Ury’s principled negotiation theory provides negotiators with the necessary tools to unlock the unreasonable man’s intentions. Furthermore, in the case of an unyielding negotiator, the 3D negotiation technique provides negotiators with an alternative approach which changes the dynamic of the negotiation setting. The skilful use of the 3D negotiation technique should convince the unreasonable man to adopt a more reasonable approach.

While a combination of Follett, Fisher and Ury, Hofstede, Lax and Sebenius’ theories provide a strong and flexible approach for principled-based negotiators to embrace and counteract the effects of adversarial bargaining, there are many other theories and techniques that have not been considered in this report. This gap provides an opportunity for further research into additional negotiation strategies, which will assist in the understanding of the unreasonable man better, so that conflict can be successfully resolved through integrative and inclusive negotiations.

VI BIBLIOGRAPHY

‘10 Minutes with Geert Hofstede on Indulgence Versus Restraint’ (YouTube, 15 August 2020 AEST), <https://www.youtube.com/watch?v=V0YgGdzmFtA>

Arthur, Les, ‘Why Problem-Solving Cooperative Strategies Are Necessary to Achieve the Goals of Reforms to the Civil Justice System’ [2015] (23) Waikato Law Review: Taumauri 22

Bordone, Robert C. and Gillien S. Todd, ‘Have You Negotiated How You’ll Negotiate?’ (2005) 8(9) Negotiation 3

Bordone, Robert C. and Michael L. Moffitt, ‘Create Value out of Conflict’ (2006) 9(6) Negotiation 3

Bordone, Robert C., ‘Listen Up! Your Talks May Depend on It’ (2007) 10(5) Negotiation 1

Brett, Jeanne M., Stephen B. Goldberg and William L. Ury, ‘Designing Systems for Resolving Disputes in Organisations’ (1990) 45(2) American Psychologist 162

Ebner, Naom, ‘Negotiating Via Email’ in Chris Honeyman and Andrea K. Schneider (eds), The Negotiator’s Desk Reference (DRI Press, 2017)

Ellemers, Naomi, Susan T. Fiske, Andrea E. Abele, Alex Koch and Vincent Yzerbyt, ‘Adversarial Alignment Enables Competing Models to Engage in Cooperative Theory Building Towards Cumulative Science’ (2020) 117(14) Proceedings of the National Academy of Sciences of the United States of America 7561

Faris, John, ‘The Lawyer as Litigator/Negotiator: Reflections on the South African Context’ (2006) 39(3) De Jure 481

Fisher, Roger and William Ury, Getting to Yes: Negotiating an Agreement Without Giving In, ed Bruce Patton (Random House Business Books, 2012) 59

Follett, Mary P., Dynamic Administration: The Collected Papers of Mary Parker Follet, ed Lyndall Urwick and Henry C. Metcalf (Routledge, 2014)

Goldberg, Stephen B., Frank E.A. Sander, Nancy H. Rogers, Sarah Rudolph Cole, Dispute Resolution: Negotiation, Mediation and Other Processes (Aspen Publishers, 6th ed, 2014)

Haussmann, Brian C., ‘The ABA Ethical Guidelines for Settlement Negotiations: Exceeding the Limits of the Adversarial Ethic’ (2004) 89(5) Cornell Law Review 1218

Higgs, David, ‘Ethical Settlement Negotiation’ [2009] (Winter) Journal of the NSW Bar Association 60

Hofstede, Geert, ‘Dimensionalizing Cultures: The Hofstede Model in Context’ (2011) (2)1 Online Readings in Psychology and Culture 1

Johnston, Katie, ‘The Art of Haggling’ (2012) Harvard Business School Working Knowledge 1, <https://hbswk.hbs.edu/item/the-art-of-haggling>

Lax, David A. and James K. Sebenius, ‘3-D Negotiation: Playing the Whole Game’ [2003] (November) Harvard Business Review 1

Macfarlane, Julie, The New Lawyer: How Settlement Is Transforming the Practice of Law (University of British Columbia Press, 2008)

Macmillan Publishers Australia, ‘Dominate’, Macquarie Dictionary (Web Page, 2020) <https://www-macquariedictionary-com-au.wwwproxy1.library.unsw.edu.au/features/word/search/?search_word_type=Dictionary&word=dominate#>

Maughan, Caroline, Mike Maughan and Thornhill, Adrian Thornhill, ‘Confronting Adversarial Attitudes to Negotiation: What the Red/Blue Exercise Can Teach Us and Our Students’ (1998) 32(1) The Law Teacher 79

Mayer, Bernard, The Dynamics of Conflict: A Guide to Engagement and Intervention (Jossey-Bass, 2nd ed, 2012)

Menkel-Meadow, Carrie, ‘Toward Another View of Legal Negotiation: The Structure of Problem Solving’ (1984) 31(4) UCLA Law Review 754

Patton, Bruce, ‘Negotiation’ in Michael L. Moffitt and Robert C. Bordone (eds), The Handbook of Dispute Resolution (Jossey-Bass, 2005) 279

Pradel, Dina W., ‘When Gender Changes Negotiation’ (2006) Harvard Business School Working Knowledge 1 <https://hbswk.hbs.edu/item/when-gender-changes-the-negotiation>

Roloff, Michael E. and Jerry M. Jordon, ‘Achieving Negotiation Goals: The “Fruits and Foibles” of Planning Ahead’ in Linda L. Putnam and Michael E. Roloff (eds), Communication and Negotiation (Sage Publications 1992) vol 20

Rufo, M. J., J. Martín and C. J. Pérez, ‘Adversarial Life Testing: A Bayesian Negotiation Model’ [2014] (131) Reliability Engineering & System Safety 118

Shaw, Bernard, Man and Superman: A Comedy and Philosophy (Brentano’s, 1905) 238

Silbey, Susan and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject’ (1989) 66(3) Denver University Law Review 437

Stalmarshe, Ella, ‘Using Story to Change the Negotiation’ Stanford Social Innovations Review (Web Page, 7 July 2020) <https://ssir.org/articles/entry/using_story_to_change_systems>

Susskind, Lawrence, ‘Breaking Robert’s Rules: Consensus-Building Techniques for Group Decision Making’ (2006) 8(5) Negotiation 3

Tannen, Deborah, ‘The Argument Culture: Agonism & the Common Good’ (2013) 142(2) Daedalus 177

Ting-Toomey, Stella, Communicating Across Cultures (Guilford Publications, 1999)

Traum, David, William Swartout, Stacy Marsella and Jonathan Gratch, ‘Fight, Flight, or Negotiate: Believable Strategies for Conversing under Crisis’ [2005] (3661) Intelligent Virtual Agents 52

^[1] Bernard Shaw, Man and Superman: A Comedy and Philosophy (Brentano’s, 1905) 238.

^[4] Roger Fisher and William Ury, Getting to Yes: Negotiating an Agreement Without Giving In, ed Bruce Patton (Random House Business Books, 2012) 59 (‘Fisher1’).

^[5] Albie M. Davis, ‘An Interview With Mary Parker Follett’ (1989) 5(3) Negotiation Journal 223, 224 (‘Davis’); Jeanne M. Brett, Stephen B. Goldberg and William L. Ury, ‘Designing Systems for Resolving Disputes in Organisations’ (1990) 45(2) American Psychologist 162, 163 (‘Brett’); Robert C. Bordone and Michael L. Moffitt, ‘Create Value out of Conflict’ (2006) 9(6) Negotiation 3, 3 (‘Bordone1’); Shane Campbell, ‘Expert Determination as Dispute Resolution in New Zealand’ (2020) 30(2) Australasian Dispute Resolution Journal 142, 142.

^[6] Mary P. Follett, Dynamic Administration: The Collected Papers of Mary Parker Follet, ed Lyndall Urwick and Henry C. Metcalf (Routledge, 2014) 2 (‘Follett’).

^[7] Macmillan Publishers Australia, ‘Dominate’, Macquarie Dictionary (Web Page, 2020) <https://www-macquariedictionary-com-au.wwwproxy1.library.unsw.edu.au/features/word/search/?search_word_type=Dictionary&word=dominate#>.

^[9] Caroline Maughan, Mike Maughan and Adrian Thornhill, ‘Confronting Adversarial Attitudes to Negotiation: What the Red/Blue Exercise can Teach Us and Our Students’ (1998) 32(1) The Law Teacher 79,79 (‘Maughan’).

^[11] Carrie Menkel-Meadow, ‘Lawyer Negotiations: Theories and Realities. What We Learn from Mediation’ (1993) 56(3) Modern Law Review 361, 361 (‘Menkel-Meadow1’); David Traum et al, ‘Fight, Flight, or Negotiate: Believable Strategies for Conversing under Crisis’ [2005] (3661) Intelligent Virtual Agents 52, 54 (‘Traum’); Dickinson (n 10) 212; Katie Johnston, ‘The Art of Haggling’ (2012) Harvard Business School Working Knowledge 1, 1 <https://hbswk.hbs.edu/item/the-art-of-haggling>.

^[12] Dickinson (n 10) 212; Paul F. Kirgis, ‘Hard Bargaining in the Classroom: Realistic Simulated Negotiations and Student Values’ (2012) 28(1) Negotiation Journal 93, 94.

^[13] Dina W. Pradel, ‘When Gender Changes Negotiation’ (2006) Harvard Business School Working Knowledge 1, 2 <https://hbswk.hbs.edu/item/when-gender-changes-the-negotiation>; Maughan (n 9) 79.

^[16] Deborah Tannen, ‘The Argument Culture: Agonism & the Common Good’ (2013) 142(2) Daedalus 177, 179.

^[19] John Faris, ‘The Lawyer as Litigator/Negotiator: Reflections on the South African Context’ (2006) 39(3) De Jure 481,494 (“Faris”); Menkel-Meadow1 (n 11) 364.

^[20] James K. Sebenius, ‘What Roger Fisher Got Profoundly Right: Five Enduring Lessons for Negotiators’ (2013) 29(2) Negotiation Journal 159, 162 (‘Sebenius’); Jeffrey M. Senger, ‘Tales of the Bazaar: Interest-Based Negotiation Across Cultures’ (2002) 18(3) Negotiation Journal 233, 235 (‘Senger’); Naomi Ellemers et al, ‘Adversarial Alignment Enables Competing Models to Engage in Cooperative Theory Building towards Cumulative Science’ (2020) 117(14) Proceedings of the National Academy of Sciences of the United States of America 7561, 7563 (‘Ellemers’).

^[22] Balstad (n 10) 245; David Higgs, ‘Ethical Settlement Negotiation’ [2009] (Winter) Journal of the NSW Bar Association 60, 60 (‘Higgs’); Owen M. Fiss, ‘Against Settlement’ (1984) 93(6) Yale Law Journal 1073; Susan Silbey and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject’ (1989) 66(3) Denver University Law Review 437, 452.

^[24] Faris (n 19) 485; Leon Wolff, ‘Litigiousness in Australia: Lessons from Comparative Law’ [2013] DeakinLawRw 11; (2013) 18(2) Deakin Law Review 271, 275 (‘Wolff’); Les Arthur, ‘Why Problem-Solving Cooperative Strategies Are Necessary to Achieve the Goals of Reforms to the Civil Justice System’ [2015] (23) Waikato Law Review: Taumauri 22, 25.

^[26] Julie Macfarlane, The New Lawyer: How Settlement Is Transforming the Practice of Law (University of British Columbia Press, 2008) 12.

^[27] This example relates to the author’s personal experience. The values have been approximately for the sake simplicity.

^[29] Russell Korobkin, ‘Bargaining Power as Threat of Impasse’ [2003-04] (87) Marquette Law Review 867, 870 (‘Korobkin’); Stephen B. Goldberg et al, Dispute Resolution: Negotiation, Mediation and Other Processes (Aspen Publishers, 6th ed, 2014) 30.

^[30] Brett (n 5) 167; Follett (n 6) 2; M. J. Rufo, J. Martín and C. J. Pérez, ‘Adversarial Life Testing: A Bayesian Negotiation Model’ [2014] (131) Reliability Engineering & System Safety 118, 118 (‘Rufo’); Faris (n 19) 498.

^[31] Menkel-Meadow1 (n 11) 367; Michael E. Roloff and Jerry M. Jordon, ‘Achieving Negotiation Goals: The “Fruits and Foibles” of Planning Ahead’ in Linda L. Putnam and Michael E. Roloff (eds), Communication and Negotiation (Sage Publications 1992) vol 20, 21, 26.

^[32] Carrie Menkel-Meadow, ‘Toward Another View of Legal Negotiation: The Structure of Problem Solving’ (1984) 31(4) UCLA Law Review 754, 757 (‘Menkel-Meadow3’).

^[36] Brian C. Haussmann, ‘The ABA Ethical Guidelines for Settlement Negotiations: Exceeding the Limits of the Adversarial Ethic’ (2004) 89(5) Cornell Law Review 1218, 1232.

^[40] Bobette Wolski, ‘The New Limitations of Fisher and Ury's Model of Interest-Based Negotiation: Not Necessarily the Ethical Alternative’ [2012] (19) James Cook University Law Review 127, 147 (‘Wolski’).

^[41] Robert C. Bordone and Gillien S. Todd, ‘Have You Negotiated How You’ll Negotiate?’ (2005) 8(9) Negotiation 3, 3 (‘Bordone2’).

^[52] Andrea K. Schneider, ‘Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style’ [2002] (7) Harvard Negotiation Law Review 143, 197; Menkel-Meadow3 (n 32) 832; Brett (n 5) 164.

^[61] David A. Lax and James K. Sebenius, ‘3-D Negotiation: Playing the Whole Game’ [2003] (November) Harvard Business Review 1, 2 (‘Lax’); Ellemers (n 20) 7565; Fisher1 (n 4) 99; Korobkin (n 29) 867; Menkel-Meadow3 (n 32) 826; Sebenius (n 20) 163.

^[66] Fisher1 (n 4) 35-39; Robert C. Bordone, ‘Listen Up! Your Talks May Depend on It’ (2007) 10(5) Negotiation 1, 1-2.

^[67] Lawrence Susskind, ‘Breaking Robert’s Rules: Consensus-Building Techniques for Group Decision Making’ (2006) 8(5) Negotiation 3, 5; Patton (n 47) 284.

^[74] Dickinson (n 10) 218; Faris (n 19) 498; Menkel-Meadow1 (n 11) 365.

^[75] Faris (n 19) 494; Fisher2 (n 25) 157.

^[76] Maughan (n 9) 80.

^[77] Menkel-Meadow1 (n 11) 366.

^[78] Traum (n 11) 62-63.

^[79] Alex J. Hurder, ‘The Lawyer's Dilemma: To Be or Not to Be a Problem-Solving Negotiator’, (2007) 14(1) Clinical Law Review 253, 273.

^[80] Traum (n 11) 63.

^[81] John Barkai, 'What's a Cross-Cultural Mediator to Do: A Low-Context Solution for a High-Context Problem' (2008) 10(1) Cardozo Journal of Conflict Resolution 43, 45 (‘Barkai’).

^[82] Barkai (n 81) 45; Kenny Yang, ‘Towards Cross-Cultural Fluency in Mediation Standards’ [2017] UTasLawRw 3; (2017) 36(1) University of Tasmania Law Review 69, 76 (‘Yang’).

^[83] Barkai (n 81) 63; Bernard Mayer, The Dynamics of Conflict: A Guide to Engagement and Intervention (Jossey-Bass, 2nd ed, 2012) 98 (‘Mayer’); Geert Hofstede, ‘Dimensionalizing Cultures: The Hofstede Model in Context’ (2011) (2)1 Online Readings in Psychology and Culture 1, 9 (‘Hofstede’); Mona Chung and Richard Ingleby, ‘The Applicability of Western Socio-Legal Frameworks to the Study of Negotiation in Chinese Society’ (2011) 33(2) Journal of Higher Education Policy and Management 169, 171 (‘Chung’); Stella Ting-Toomey, Communicating Across Cultures (Guilford Publications, 1999) 69-70 (‘Ting-Toomey’).

^[84] Ibid.

^[85] Hofstede (n 83) 9.

^[86] Barkai (n 81) 64.

^[87] Barkai (n 81) 65; Chung (n 83) 176; Yang (n 82) 77.

^[88] Barkai (n 81) 66; Mayer (n 83) 98.

^[89] Ibid.

^[90] Barkai (n 81) 67.

^[91] Barkai (n 81) 74; Chung (n 83) 171; Hofstede (n 83) 10-11; Ting-Toomey (n 83) 71.

^[92] Ibid.

^[93] Ting-Toomey (n 83) 71.

^[94] Barkai (n 81) 76; Ting-Toomey (n 83) 72.

^[95] Barkai (n 81) 75.

^[96] Barkai (n 81) 67-68; Chung (n 83) 171; Hofstede (n 83) 11; Ting-Toomey (n 83) 67.

^[97] Barkai (n 81) 67-68.

^[98] Ibid 69.

^[99] Ibid.

^[100] Barkai (n 81) 78; Ting-Toomey (n 83) 74.

^[101] Barkai (n 81) 77.

^[102] Barkai (n 81) 77; Ting-Toomey (n 83) 74.

^[103] Barkai (n 81) 72; Chung (n 83) 171; Ting-Toomey (n 83) 72.

^[104] Ting-Toomey (n 83) 72.

^[105] Ibid 177.

^[106] Barkai (n 81) 73.

^[107] Barkai (n 81) 73; Ting-Toomey (n 83) 73.

^[108] Daniel Del Gobbo, ‘The Feminist Negotiator's Dilemma’ (2018) 33(1) Ohio State Journal on Dispute Resolution 1, 14.

^[109] Ibid 64.

^[110] Barkai (n 81) 73.

^[111] ‘10 Minutes with Geert Hofstede on Indulgence Versus Restraint’ (YouTube, 15 August 2020 AEST), <https://www.youtube.com/watch?v=V0YgGdzmFtA>; Hofstede (n 83) 15-16.

^[112] Ibid.

^[113] Barkai (n 81) 57; Naom Ebner, ‘Negotiating Via Email’ in Chris Honeyman and Andrea K. Schneider (eds), The Negotiator’s Desk Reference (DRI Press, 2017) 115, 126.

^[114] Hofstede (n 83) 11; Yang (n 82) 76.

^[115] Ella Stalmarshe, ‘Using Story to Change the Negotiation’ Stanford Social Innovations Review (Web Page, 7 July 2020) <https://ssir.org/articles/entry/using_story_to_change_systems>.

^[116] Davis (n 5) 227.

^[117] Maughan (n 9) 94.

^[118] Brett (n 5) 167; Kirgis (n 12) 105; Menkel-Meadow3 (n 32) 767; Wolski (n 40) 145.

^[119] Fisher1 (n 4) 11.

^[120] Barkai (n 81) 81.

^[121] John Barkai, ‘Cultural Dimension Interests, the Dance of Negotiation, and Weather Forecasting: A Perspective on Cross-Cultural Negotiation and Dispute Resolution’ (2008) 8(3) Pepperdine Dispute Resolution Law Journal 403, 416 (‘Barkai2’).

^[122] Barkai (n 81) 74; Ting-Toomey (n 83) 189.

^[123] Barkai (n 81) 76. Ting-Toomey (n 83) 189.

^[124] Barkai2 (n 119) 422; Ting-Toomey (n 83) 137.

^[125] Faris (n 19) 483; Fisher2 (n 25) 154; Maughan (n 9) 91; Menkel-Meadow1 (n 11) 370.

^[126] Ting-Toomey (n 83) 74.

^[127] Barkai2 (n 119) 445.

^[128] Senger (n 20) 248.

^[129] Dickinson (n 10) 215; Menkel-Meadow1 (n 11) 365.

^[130] Fisher1 (n 4) 99.

^[131] Fisher1 (n 4) 106; Korobkin (n 29) 867.

^[132] Hofstede (n 83) 15-16.

^[133] Mayer (n 83) 656.

^[134] Traum (n 11) 55.

^[135] Dickinson (n 10) 215; Menkel-Meadow1 (n 11) 370.

^[136] Buckley (n 10) 183; Dickinson (n 10) 216; Maughan (n 9) 91-92.

^[137] Dickinson (n 10) 212.

^[138] Buckley (n 10) 183; Menkel-Meadow1 (n 11) 365.

^[139] Ibid.

^[140] Barkai2 (n 119) 444-446.

^[141] Fisher1 (n 4) 108.

^[142] Senger (n 20) 248.

^[143] Fisher1 (n 4) 187.

^[144] Ibid 110.

^[145] Ibid.

^[146] Lax (n 67) 1.

^[147] Ibid 2.

^[148] Ibid 3.

^[149] Traum (n 11) 52.

^[150] Ibid 63.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLawJlStuS/2020/25.html

Negotiation Style	Domination Positional Adversarial Distributive Competitive Hard	Compromise Soft	Integration Principled Problem Solving
Example	The slice of cake is given to one child only.	The cake is divided equally between the two children.^[72]	The icing is given to one child and the cake to the other to satisfy their underlying interest for the slice of cake.^[73]

		Adversarial	Compromise	Principled
A	Power Distance - High	x		x
A	Power Distance - Low		x	x
B	Uncertainty Avoidance High	x
B	Uncertainty Avoidance - Low		x	x
C	Individualism	x
C	Collectivism		x	x
D	Long-Term Orientation		x	x
D	Short-Term Orientation	x
E	Masculinity	x
E	Femininity		x	x
F	Indulgence		x	x
F	Restraint	x

University of New South Wales Law Journal Student Series

da Silva, Paulo --- "Adversarial Bargaining in Negotiation" [2020] UNSWLawJlStuS 25; (2020) UNSWLJ Student Series No 20-25

I INTRODUCTION

II NEGOTIATION TECHNIQUES

A Domination

B Compromise

C Integration

III NEGOTIATION STYLE DRIVING FACTORS

A Power Distance

B Uncertainty Avoidance

C Individualism versus Collectivism

D Long-Term versus Short-Term Orientation

E Masculinity versus Femininity

F Indulgence versus Restraint

IV THE TOOLS IN NEGOTIATOR’S REPERTOIRE

A Neutralise Adversarial Negotiators

B Adopt Adversarial Techniques

V CONCLUSION

VI BIBLIOGRAPHY