AustLII Home | Databases | WorldLII | Search | Feedback

University of New South Wales Law Journal Student Series

You are here:  AustLII >> Databases >> University of New South Wales Law Journal Student Series >> 2021 >> [2021] UNSWLawJlStuS 40

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Singla, Rajat --- "Can We Completely Avoid Positions In Principled Negotiations?" [2021] UNSWLawJlStuS 40; (2021) UNSWLJ Student Series No 21-40


CAN WE COMPLETELY AVOID POSITIONS IN PRINCIPLED NEGOTIATIONS?

RAJAT SINGLA[1]

I INTRODUCTION

It is said that we cannot avoid negotiations in our life. We have to negotiate in our mundane chores and very delicate matters, too. We have to negotiate with our family, friends, colleagues, strangers, and sometimes with ourselves. We always negotiate to get something desirable out of the negotiation. This desired outcome can be either a hard position or fulfilling interest or sometimes both.

There are two key elements of a negotiation over which the negotiation is often performed. One is position and the other is interest. Both elements play a paramount role in the course of the negotiation and the outcome of it.

Negotiation skills may or may not be innate but can be mastered through well-practised strategies. Positional bargaining and principled negotiations are two of such strategies. Positional bargaining involves holding a position by both the parties and negotiating over it.[1] While principled negotiation is aimed to reach an outcome that is satisfying to the underlying interests of both parties. [2]

This essay will explore the interaction of the key elements, positions, of the positional bargaining with the other key element, interests and principled negotiation itself. Under the scope of this essay, the terms, principled negotiation and interest-based negotiation are interchangeable and synonymous.

This essay targets the relevance of the positions in negotiations, especially in interest-based negotiations. It will explain the importance of the positions in the negotiations. It will also highlight the limitations of positional bargaining. Moreover, this essay will justify the need for positions even in principled negotiation.

Section II of this essay will explain the meaning of having positions in a negotiation. It will explain its uses in the positional bargaining method. It will also identify any alias terms for positional bargaining. Further, it will explain the advantages and limitations of having positions in a negotiation.

Section III will identify an alternative to position in a negotiation. It will explain the principled negotiation process. It will highlight how this method is an alternative to the positional negotiation method. Moreover, it will highlight the advantages of this method. It will also identify the shortcomings and limitations of this method.

Section IV will contrast and compare the elements that are positions and interests. It will assess their interaction. It will then identify the areas of their overlap. It will discuss the role of positions in principled negotiation.

Section V will explore the possibility of eliminating the positions from a negotiation. Eventually, it will propose a model to explain principled negotiation under the ambit of positions.

In conclusion, Section VI will conclude upon the findings of all the previous sections. It will answer the question that whether positions can be avoided in interest-based negotiations. It will conclude that even if taking hard positions may not be the best option, negotiating over positions after fulfilling the underlying interests is unavoidable.

This essay contributes to the scholarship that deals with the comparison of positional bargaining and interest-based negotiations. However, this essay will not comment upon which type of negotiation is superior. Besides, it will highlight the importance of positions in principled negotiation.

II WHAT DOES A POSITION MEAN IN A NEGOTIATION?

A position in a negotiation has several meanings, depending upon various factors. In some negotiations, a position can be set by expressing an offer or proposal.[3] While in some negotiations it can be assumed by expressing a will.[4] A position can either be a demand or an expectation.[5] A position can be derived from a sense of commitment.[6] Thus, a position is what the parties either express or tell, they want. The use of position is to claim maximum value for yourself out of the negotiation.

Negotiating over positions is often termed positional bargaining.[7] It is instrumental to the outcome of the negotiation and ultimately to the satisfaction of the parties that how they negotiate over positions. It happens that the parties either modify their positions while negotiating or remain stick to a position.

Modification of the position of one party may or may not come at the cost to the other. If it does not cost the other party, it is called efficiency bargaining or problem-solving or mutual profitable adjustments.[8]

Negotiating over the set positions without making concessions, may lead to no agreement at all. However, it happens that the parties resort to hard positions. They may or may not make concessions while negotiating. They likely ignore the underlying interests of the opposite party. Thus, it may lead to an undesirable outcome for either of the party or both of them.[9]

Positional bargaining may turn into a zero-sum game that is more for one means less for the other. It means any modification to the position will cost the other party. This type of bargaining is termed distributive negotiation.[10]

It cannot be denied that positions perform an important role in negotiations. It sets the stage for the negotiation.[11] However, it does not mean that negotiation always commences after stating the positions.

Negotiation is a process that starts even earlier than an offer made by a party. It starts with the preparation for the negotiation. It is said that good preparation before the negotiation bears a better outcome from the negotiation.[12]

Thus, to understand the importance of position in a negotiation, it is equally important to understand the process behind setting up a position. Setting up a position may involve gathering enough information about the negotiation and the opposite party. It involves certain steps, such as:

i. Assessing one’s own BATNA – Best Alternative To a Negotiated Agreement – BATNA is a benchmark against which the negotiated agreement can be measured.[13] It is the best alternative you would choose in case you do not reach an agreement. However, it also facilitates setting up a limit to the most concessional position you can take. It means, if the most concessional position is worse than your BATNA, you shall choose to go with your BATNA. This concessional position is also termed as the reservation value or walk-away point.[14]

ii. Similarly, assessing the opposite party’s BATNA and reservation value influences your initial position and the modified positions during the negotiations. [15]

As we understand that there lie two reservation values in a negotiation, the zone between your reservation value and the other’s reservation value is the zone of possible agreement or ZOPA.[16] It is the zone of the possible positions you or the opposite party can take while negotiating.

These steps are highly dependent upon the amount of information available pre-negotiation or during negotiation. [17] It provides an anchor during the negotiation.[18] However, the efficiency of the anchor depends upon the amount of information available to the negotiators.[19]

Thus, these steps define the positions and their efficiency. Stating the positions too early or too late may also affect the outcome of the negotiation.

Now a question arises, whether stating a position is negotiation itself? I would say no. Negotiation is the after-process of stating the positions such as contemplating the position or discussing the interests behind the position.

Contemplating the position addresses the ‘What is the position’ part. It involves iterative give and take concessions. This is termed haggling and it is a necessary component of every negotiation.[20] The other one deals with the ‘Why the position’ part. It involves focusing on the underlying interests. Thus, positions may also reflect the underlying interests of the parties.[21]

Thus, while negotiating over positions, making a concession to a position should not be seen as a compromise to the underlying interest. Compromise is seen as a withdrawal or reduction of demand.[22] However, giving a concession may be seen as the endeavour to satisfy the underlying interests.[23]

In Contrast, focusing primarily on the interests and then modifying the positions can be a better method to negotiate. This aspect is discussed in the next section.

III IS THERE ANY ALTERNATIVE TO POSITION IN A NEGOTIATION?

Yes, there is. Interests are an alternative to positions in a negotiation. Interests are projected as a better alternative to positions. Interests may be the desires, needs, wants and motivation. Interest is the causal factor for the position.[24] Interests are what define the problem.[25]

As pointed out in the previous section that understanding the underlying interests explains the Why of the position. A comprehension of Why can progress the negotiation when negotiation over What comes to an impasse.[26]

Whenever, the positions seem incompatible, investigating and discussing the underlying interests may offer a solution.

Interests may be reconcilable.[27] Getting to Yes explains the importance of reconciling the interests by highlighting two reasons:

i. For every interest, there usually exist several possible positions that may satisfy it.

ii. For every position, there may exist multiple underlying interests.[28]

Interests can either be different or conflicting or both or none. Discussing over interests may reveal that even if the positions are conflicting or interests are different, still there may be shared and non-conflicting underlying interests.[29] Negotiating over such interests may result in an outcome, satisfying to both parties. Negotiating over interests is called interest-based negotiation or principled negotiation.[30]

Conflicting interests or opposed interests reflects the incompatibility of the preferences for the alternatives under the consideration.[31] However, underlying interests are not inherently opposed.[32] It is the degree of divergence of interest that needs to be reduced or eliminated, through the discovery of new alternatives.[33]

The process by which new alternatives that offer greater mutual gains are found is called integrative bargaining.[34] This is similar to invent options for mutual gains under principled negotiation, as explained by Getting to Yes.[35]

However, these new alternatives and creative options are nothing but the modified possible positions in efforts to reconcile the interests. This reconciliation can be achieved by two methods:

i. Logrolling

ii. Bridging

As Getting to Yes suggested, there may lie multiple underlying interests or concerns behind a position.[36] There may also lie a possibility to trade across such interests and concerns. It is called logrolling. [37] Logrolling requires both parties to respect each other’s interests and if the other side values something more than you do, you should give it to them in exchange for reciprocity on issues that are a higher priority for you.[38] Thus this process is about assessing the values of the interests and prioritizing them. Then, parties evoke concessions from the other in place of gains in some other high priority interest of theirs.[39]

Whereas bridging is the convergence of the positions by discussing the diverging underlying interests and developing new options.[40] This involves inventing new creative options for mutual benefits and to satisfy each other’s interests. It involves rigorous brainstorming by both parties. The parties justify their proposals by persuading the other party through the address of their respective interests in the proposal. Thus meeting each other’s interests becomes the priority.[41]

Getting to Yes explains principled negotiation somewhat similar to bridging. It explains the method by the following four points:

i. Separate the People from the Problem: It says that by stating positions, people become part of the problem by themselves. Thus, it is necessary to separate people from the problem to understand the problem.[42]

ii. Focus on interests, not positions: It says that the negotiations shall happen over the underlying interest rather than the stated positions. It helps in satisfying the underlying interests which will lead to a win-win outcome.[43]

iii. Generate a variety of possibilities before deciding what to do: It says to reconcile differing interests, parties shall develop or invent options satisfying each other’s interests.[44]

iv. Insist that the result be based on some objective standard: This element imparts the degree of fairness in the outcome of the negotiation. It says the developed options shall be validated through neutral objective standards. It raises the confidence of parties in the substance of the option as well as its fairness.[45]

This model of principled negotiation is quite popular and widely followed by practitioners.[46] There is a heavy bias towards the application of the interest-based negotiation model in mediation practices,[47] collaborative law,[48] current practice guidelines for legal representatives,[49] and recommendations for new codes of conduct for legal representatives.[50]

However, its wide acceptance by the scholarship does not mean that it is not being criticized. There have been well-documented critique discourses available for principled negotiation.[51] The major of all criticism is the ignorance towards the distributive bargaining aspect.

In principled negotiation, as explained by Getting to Yes, the emphasis is upon the problem-solving aspect of the bargaining. However, it certainly excludes the distributional aspect of bargaining.[52] In contrast, some argue that the most demanding aspect of bargaining of nearly every negotiation is the distributional one.[53]

Due to overemphasis on the principled negotiation model, some argue that the adversarial bargaining aspect is neglected from negotiation literature as well as in practice.[54] Some has expressed concern that, with so varied mediation practices, mediators trained in interest-based negotiation model are not prepared to manage the distributive phase of negotiations.[55]

Moreover, upon comprehension of the interest-based negotiation model, it can be said that once the parties discuss their underlying interests, a problem-solving approach, they resort to inventing options of mutual gains. As I have said earlier that these options are the modified positions of the parties. Thus, in the end, parties negotiate over these options in a distributive manner or adversarial manner.[56]

To understand interests comprehensively, it is important to identify the nature of the interest. Understanding interests further reveal that interests can either be distinguished as either objective interests or subjective interests.[57] This distinction reveals a further shortcoming of the principled negotiation.

The distinction between objective interests and subjective interests is the same as the distinction between needs and wants. Subjective interests may be those interests that are desired or wanted by the negotiator, however, such interests may or may not be beneficial to him.[58] While objective interests are those interests that are beneficial to the negotiator, however, such interests may or may not be known to him.[59]

Subjective interests are mere preferences of the parties, just like the positions are. While the positions are either extreme or hard, which I say is not true always, subjective interests provide the rationale for such positions by expressing that the concerned party prefers such interest behind the respective position. Thus, parties are more likely to agree on an outcome satisfying their subjective interests.

Moreover, the objective interests may be differing from the subjective interests. The greater the difference or divergence of subjective and objective interests, the less likely the outcome is going to benefit the parties. It may give a momentary or superficial feeling of win-win, but its durability is doubtful. If during a negotiation one party discusses its subjective interests and the other party discusses its objective interests, then the developed options of mutual gains are zero-sum-game. It means these options or modified positions are more satisfactory to the party whose objective interests are attended and equally, less satisfactory to the party whose only subjective interests are attended.[60]

Thus, discussing the subjective interests during the negotiation may or may not give a win-win outcome. These are the objective interests that satisfy the negotiators and give them a sense of win. In principled negotiation, parties tend to discuss their subjective interests rather than their objective interests.

A similar concern for the principled negotiation model is that it completely ignores the importance of the positions in bargaining. It pushes for the focus on interests over positions. As highlighted from the critical literature on interest-based negotiation, overemphasis on interest and exclusion of the positions of the parties can be counterproductive.[61]

Thus, even though being a widely accepted model of negotiation, principled negotiation yet faces some conceptual challenges. Therefore, for an efficient negotiation, it is evident to understand the position and the underlying interests together.

The next section of this essay will examine the interaction of position and principled negotiation.

IV CAN THEY WORK TOGETHER OR ARE THEY MUTUALLY EXCLUSIVE?

Previous sections of this essay explained the meaning and significance of positions in a negotiation, and also the method of principled negotiation or interest-based negotiation. I have also highlighted the criticism of the principled negotiation model over the ignorance towards the positions and the distributive aspect of the negotiation. This section will find whether the element of position and the concept of interest-based negotiation are exclusive or not? If not, whether they can work together?

The interaction of interests and positions in negotiation has always been a subject of the scholarship on negotiation theory and practice. The distinction is sometimes misunderstood by scholars and practitioners.[62] The difference between positional bargaining and interest-based negotiation may be clear. But the distinction between position and interest is grey.

This can be explained from an example given in Getting to Yes, where the proverbial children quarrelled over an orange.[63] Here, I want to make a little change that makes a huge difference in the essence. I replace quarrelled with negotiating.

Thus, the children are negotiating over an orange. Now, two scenarios come into my mind to explain the presence of positions in principled negotiation.

Scenario 1

Child A says he wants the orange pulp. Child B says he wants the orange peel. Now, the respective positions are orange pulp and orange peel. Their underlying interests are Child A wants to drink orange juice while Child B wants to bake a cake using orange peel. Thus, they can easily reach an agreement with or without discussing their interests.

Scenario 2

Both Child A and Child B want the orange, as also highlighted in Getting to Yes. Their positions are set on having the orange. While their underlying interests are Child A wants to have orange pulp while Child B wants to have the orange peel. There may lie further reasoning, or I would say further underlying interests to these interests. Those interests can be such as Child A wants the pulp to drink the orange juice, while Child B wants to have the peel to bake an orange peel cake.

After discussing/expressing their interests, they may reach a stage where Child A says that ‘I want the pulp part only’ and Child B says, ‘I want the peel only’. Now they have changed their positions. The position is determined by What they want. The Why remains the same. Thus, they can reach a mutually benefitting agreement.

A comprehension of the above-presented scenarios would highlight that in scenario 1, neither the positions nor the interests are conflicting. However, the interests are different, but they are not conflicting. While in scenario 2, the initial positions were conflicting, but the interests are not. After discussing the interests, the conflicting positions are transformed into non-conflicting ones.

Also, further analysis of both the scenarios reveal that having an orange for pulp and peel are merely instrumental interests. While drinking orange juice and bake an orange peel cake are the ultimate interests, respectively.

Thus, understanding interests further reveal that interests can either be instrumental interests or ultimate/intrinsic interests. [64] Instrumental interests are the interests that are used as a mode to satisfy other instrumental interests and eventually to satisfy the ultimate interests.[65] While ultimate or intrinsic interests are the interest that is used for one’s own sake. [66]

Instrumental interests have a causal relationship with the ultimate interests. Similarly, positions have a causal relationship with both the instrumental interests and the ultimate or intrinsic interests. Thus, to ultimate interests, both positions or modified positions and instrumental interests are required to be attended.

So, a question arises here, whether the positions were eliminated from the negotiation? I would say, no. Besides the interests were used to modify the positions. Instrumental interests were turned into modified positions. Thus, there is no bright-line distinction between positions and interests. They may seem mutually exclusive, but they work together in the dynamics of the principled negotiation.

V WHAT IF WE ELIMINATE POSITION FROM PRINCIPLED NEGOTIATION?

There has always been a criticism to negotiate over the position. Ample literature and case studies attempt to justify this. However, previous sections of this essay have explained how positions are indigenous to principled negotiation.

Still, I have formulated a simple buy and sell scenario to understand whether an outcome can be reached without a position. Let us consider the following scenario:

Mr X wants to buy a painting and Mr Y wants to sell it. The individual interest for Mr X would be to purchase the painting at a minimum price and for Mr Y it would be to sell it at a maximum profit.

Here the interests are different and conflicting too. At first, it seems they don’t have any mutual interest, as one wants to buy it and the other wants to sell it. But the mutual interest is that they both want to have a transaction over this painting. Understandably, the outcome of this negotiation would depend on the agreement over the price of the painting.

One way of starting the negotiation is that Mr X asks for the price of the painting at which Mr Y wishes to sell. Now if Mr Y expresses his interest that he wants to sell this painting, would it bear an outcome for the negotiation? I would say no.

Suppose Mr X expresses that he wants to buy the painting. Now both have expressed their interests. Still, would it result in an outcome? I would again say no.

Further, Mr Y expresses that he wants to sell the painting at a reasonable profit, while Mr X says he wants to buy this painting at the cheapest possible price. Now they have expressed their further interests. Would it result in an outcome? I would again say no.

Expression of interest can go on and on. Mr X may say he likes this painting and wants to hang it on his wall. Mr Y may say he wants to sell this painting to free up space and bring in some other articles. And the list can go on.

Until now, neither of them has set up a position. Thus, this negotiation is moving exclusive of the positions and merely on the interests. There seems no outcome of this until either of them presents an objective figure, thus setting up a position.

Now, Mr Y provides objectivity and legitimacy to his interest and says that he wants to earn at least 20% profit, which is as per the market standards. Would it bear an outcome? No. However, Mr Y has set a part position for himself with 20 % profit.

Mr Y also expresses that the cost price of the painting for him is $110. Now the negotiation would focus on this profit percentage of 20%. Because it is unreasonable to assume that Mr Y is ready to sell the painting at a price less than its cost price. Thus, by expressing his interest, he has expressed what he wants. Thus, Mr Y has simultaneously set up his position which is he wants to sell it at $132.

Similarly, Mr X expresses that he cannot pay more than $100 for this painting right now. Thus, expressing that he cannot pay rather than he is not willing to pay, seems like another interest or concern.

Whether Mr X has set a position? I would say, Mr X has not set a position for his intentions to pay. However, he has set a position for the amount he can pay, which is $100.

Now further in the negotiation, what Mr X and Mr Y can do is that they find creative options to converge the difference in their positions. Converging the difference in positions does not mean eliminating positions at all. I would call this process modifying positions for mutual gains.

There could be infinite possible outcomes to this negotiation, one of which may include no transaction between Mr X and Mr Y at all. The interest-based negotiation process involves finding alternatives, assessing BATNA, and inventing new creating options for mutual gains. These processes are nothing but a mere manoeuvre and manipulation to the set or modified position by Mr X and Mr Y. This has also been stated in the book Getting to Yes.[67]

Similarly, positional bargaining with concessions would also have infinite possible outcomes, one of which would be no agreement over the price at all. However, no outcome would be highly probable in positional bargaining rather than the principled negotiation.

Thus, irrespective of the outcome, the point of discussion under the scope of this essay is justified that interest-based negotiations too have an element of position in it. As already explained, the alternatives or the new creative options as defined in section III of this essay are the modified possible positions. Though the positions are not extreme or hard, and they can be modified/changed/improved by discussing interests, concerns, and creative options of mutual gains.

In a typical negotiation, the parties initially begin by cooperative or efficiency-bargaining. Eventually, however, one comes to adversarial bargaining.[68]

I refer to the following two-triangle diagram, as explained by Professor Ross P Buckley:[69]

The vertical axis represents the time, with moving downwards means progressing in principled negotiation. The horizontal axis is the range or breadth of the potential interests, options, and outcomes. The first three phases represent the process of principled negotiation that is discussing the underlying interests then brainstorming the creative options, and then narrowing down the legitimate creative options.

Then what?

The fourth phase, the last phase, represents the haggling between the brainstormed legitimate options that satisfy the interests of both parties.

The dotted lines in the final phase represent that the outcome will fall somewhere within the range of acceptable options depending upon the specific bargaining and choices of the parties.

Thus, this last zone is similar to the zone of possible agreements or ZOPA, as explained in section II of this essay.

I propose a modified diagram, as follows:

2021_4000.png

Where a and b represent the opening positions of the parties. These may or may not be presented at the start of the negotiation.

Zone I is the zone of identifying and discussing the underlying interests. P1 is the range of underlying interests. Zone II is the zone of brainstorming for the new creative options for mutual gains. P2 is the breadth of options created. Now, these options are reality checked against the legitimate standards in Zone III. P3 is the range of such narrowed down creative options, that are legitimate and can be pursued further. The last zone is ZOPA, in which the parties engage in an adversarial process and discuss the newly created legitimate options, which I refer to as modified positions (Ox), that satisfy mutual interests. The outcome may lie anywhere in ZOPA.

The outer line which I call the Position Line is the trend of the change of positions of the parties throughout the negotiation process. Finally, the parties negotiate between OA and OB. Where, OA is the most favourable outcome for party A, though also satisfying the interests of party B. And OB is the most favourable outcome for party B, though also satisfying the interests of party A.

I can conclude that the whole process of principled negotiation is blanketed under the position line. Therefore, position, modified positions, however, may be, holds significance throughout the process of principled negotiation.

VI CONCLUSION

In this essay, I discussed the meaning of both positions and interests in the negotiation. I also explained the process of principled negotiation. Moreover, I highlighted some of the shortcomings of the principled negotiation method.

Comprehension of the arguments raised by me concludes that positions are not exclusive to the interest-based negotiation. I would say that discussing interest facilitates setting up negotiable positions. In interest-based negotiations, initial positions can set the stage for creating creative options. Further, the options of the mutual gains reflect the probable-modified positions for both parties.

Principled negotiation may or may not be superior to positional bargaining. However, the positions are imperative to the negotiation process. It is naïve to say that stating positions during the negotiation is detrimental to the process.

Rather, it is apt to say that discussing multiple positions for a mutual interest resonates with creating creative options for mutual gain. The willingness of the negotiators to change their position affects the negotiation outcome.[70]

Thus, positions play a crucial role even in interest-based negotiations. Even after discussing the interests, negotiators have to explore the alternatives, to create options for mutual gains. These options reflect the probable positions, legitimized by objective criteria. I have proposed a diagram that explains how these probable positions are necessary to reach an outcome.

Getting to Yes, projects the positional bargaining in a bad light. This leads to a misconception that positions are also a villain. Through this essay, I have attempted to lift this misconception. Positions and interests are mere elements of the process of the negotiation. It is the process or method of negotiation that can be a villain or hero.

In the end, I answer the question of this essay, can we completely avoid positions in principled negotiations? I say no, we cannot. Although we can change and modify the positions to reach an outcome through principled negotiation that is mutually benefitting to both parties.


&#6[1] Rajat Singla is currently pursuing his Master of Laws with specialization in Dispute Resolution at University of New South Wales, Sydney, Australia (2021-22).

[1] Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In (Penguin Books, 2nd ed, 1991) 2 (‘Getting to Yes’).

[2] Ibid 10.

[3] Ibid 2.

[4] Ibid 6.

[5] Thomas C Schelling, ‘An Essay on Bargaining’ (1956) 46(3) The American Economic Review 281, 281.

[6] Chris Provis, ‘Interests vs. Positions: A Critique of the Distinction’ (1996) 12(4) Negotiation Journal 305, 308.

[7] Fisher, Ury and Patton (n 1) 2.

[8] James J White, ‘The Pros and Cons of “Getting to Yes”’ (1984) 34(1) Journal of Legal Education 115, 116.

[9] Fisher, Ury and Patton (n 1) 4–7.

[10] Schelling (n 5) 281.

[11] Deepak Malhotra and Max H. Bazerman, Negotiation Genius (Bantam Books, 2007) 27.

[12] Ibid 19.

[13] Fisher, Ury and Patton (n 1) 100.

[14] Malhotra and Bazerman (n 11) 20–2.

[15] Ibid.

[16] Ibid 23–4.

[17] Ibid 26.

[18] Fisher, Ury and Patton (n 1) 4.

[19] Malhotra and Bazerman (n 11) 31.

[20] Ibid 42.

[21] Provis (n 6) 309–10.

[22] Mohamed Nachi, ‘The Morality in/of compromise: Some Theoretical Reflections’ (2004) 43(2) Social Science Information 291, 293.

[23] Provis (n 6) 310.

[24] Fisher, Ury and Patton (n 1) 41.

[25] Ibid 40.

[26] Malhotra and Bazerman (n 11) 84.

[27] Ibid 85–6.

[28] Fisher, Ury and Patton (n 1) 42.

[29] Ibid 42.

[30] Ibid 10.

[31] Dean G Pruitt, Negotiation Behavior (Academic Press, 1981) 1.

[32] Ibid 4.

[33] Ibid.

[34] Ibid.

[35] Fisher, Ury and Patton (n 1) 56–80.

[36] Ibid 42.

[37] Pruitt (n 31) 153.

[38] Malhotra and Bazerman (n 11) 58–9.

[39] Catherine H Tinsley, ‘How Negotiations Get to Yes: Predicting the Constellation of Strategies Used Across Cultures to Negotiate Conflict’ (2001) 86(4) Journal of Applied Psychology 583, 584.

[40] Pruitt (n 31) 154.

[41] Tinsley (n 39) 584.

[42] Fisher, Ury and Patton (n 1) 17–39.

[43] Ibid 40–55.

[44] Ibid 56–80.

[45] Ibid 81–94.

[46] 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, 127–8.

[47] Ibid 131.

[48] Ibid 134.

[49] Ibid 135.

[50] Ibid 137.

[51] Ibid 127–58; Provis (n 6); White (n 8); Ross P Buckley, ‘Adversarial Bargaining: The Neglected Aspect of Negotiation’ (2001) 75 The Australian Law Journal 181.

[52] White (n 8) 116.

[53] Ibid 116.

[54] Buckley (n 51) 181.

[55] Wolski (n 46) 127.

[56] Buckley (n 51) 181.

[57] Provis (n 6) 307.

[58] Ibid 308.

[59] Ibid.

[60] Ibid 307.

[61] Ibid 305.

[62] Ibid 306.

[63] Fisher, Ury and Patton (n 1) 56–7.

[64] Provis (n 6) 309.

[65] Thomas M Tuozzo, ‘Aristotle’s Theory of the Good and Its Causal Basis’ (1995) 40(3) Phronesis 293, 293.

[66] Ibid.

[67] Fisher, Ury and Patton (n 1) 43.

[68] White (n 8) 116.

[69] Buckley (n 51) 182.

[70] Daniel Druckman, ‘Situational Levers of Position Change: Further Explorations’ (1995) 542 The Annals of the American Academy of Political and Social Science 61, 61.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLawJlStuS/2021/40.html