‘Negotiating the Nonnegotiable’: Highlights from the March ACR-GNY Round

By Tamia Sutherland

The Greater New York Chapter of the Association for Conflict Resolution, a nonprofit organization with nine chapters nationwide dedicated to enhancing the practice and public understanding of peaceful, effective conflict resolution, held its latest monthly roundtable breakfast on the topic of negotiating in an era of discontent.

The Feb. 3 event, co-sponsored by CUNY Dispute Resolution Center at John Jay College, was attended by more 230 guests, and marked ACR-GNY’s 246th roundtable breakfast. The monthly events started soon after the 9/11 attacks to convene and build the ADR community.

The event presented keynoter Daniel Shapiro, the founder and director of the Harvard International Negotiation Program, an associate professor in psychology at Harvard Medical School/McLean Hospital, and an affiliate faculty member at the Program on Negotiation at Harvard Law School.  He is a frequent public speaker and author of Negotiating the Nonnegotiable (Penguin 2017), which served as his presentation’s theme.

The meeting was divided into three parts: a 30-minute networking reception, the keynote presentation, and a question-and-answer session with Shapiro.

The meeting kicked of with welcoming remarks from Maria R. Volpe, Professor of Sociology, Director of the Dispute Resolution Program at John Jay College of Criminal Justice in New York, and Julie Denny, a mediator in Morristown, N.J., and a board member as well as former president of ACR-GNY.

Shapiro began by highlighting some of the polarized and emotionally charged public conflict issues in the world right now, such as challenges to democracy, race relations, the pandemic, etc., which have now “entered the home.” He outlined the purpose of his presentation, which included introducing the “lures” that he identified, which he explained exacerbate conflict and make it emotionally charged.

Shapiro illustrated his point by analogy to a boat trying to make it to a sunny island while undercurrents pull the boat toward a waterfall edge. In this analogy, the boat represents the conflict resolution process, the island represents the cooperative mindset, the undercurrents represent the five lures he has identified, and the waterfall edge represents the tribal, divisive  mindset that is insular, self-righteous, and closed.

In the broader context of ADR literature, Dr. Shapiro explained that Getting to Yes, by Roger Fisher and William Ury, illustrates the rational way for the boat to get to the island, or a process to get to the parties to embrace a cooperative mindset rather than a divisive mindset.

Furthermore, Beyond Reason, by Roger Fisher and Dr. Shapiro, addresses the emotional dimension involved in getting the boat to this hypothetical island or getting parties in a process to embrace the cooperative mindset. Shapiro said his book, Negotiating the Nonnegotiable provides language to discuss hidden emotional dynamics and provides a lens to analyze the lack of rationality in dispute resolution processes, which are the undercurrents that typically drag parties away from engaging in a cooperative mindset while resolving a dispute.

The language Shapiro used to characterize the lures/undercurrents pulling the conflict resolution process away from a cooperative mindset and toward a tribal mindset were:

  1. “Vertigo”–becoming so consumed in a conflict that one can think about nothing else but the perpetrator, the grievance, and everything they’ve done.
  2. “Taboos”–an action, thought, or feeling that is difficult to discuss because a community deems it unacceptable.
  3. “Repetition Compulsion”–repeating the same dysfunctional pattern of behavior as a result of an addicting part of our identity.
  4. “Assault on the Sacred”–responses to an attack on the most meaningful part of one’s identity.
  5. “Identity Politics”–the process of allying with a person or group to advance a point.

To illustrate the lure of taboos, Dr. Shapiro said participants at the roundtable breakfast would be placed into break-out rooms of two with a stranger. Participants were then asked to share their (1) political affiliation, (2) salary or family net worth, (3) perception of the attractiveness of the other participant, and (4) perception of the other participant’s age.

Before Shapiro finished the instructions and ultimately let participants know that the activity would not happen, at least 10 participants dropped off the zoom call. Other participants admitted to fixing their hair, considering lying, and having general feelings of nervousness for the exercise. The participants’ actions unintentionally and clearly illustrate taboos as an undercurrent that moves individuals away from a cooperative mindset. Moreover, there was no conflict here.

Following the completion of his presentation, Dan Shapiro conducted a question-and-answer session where roundtable participants discussed in-depth questions about the lures presented.

ACR posts the program videos at https://www.acrgny.org/RTB-Videos. Information on the March Roundtable Breakfast, “Ombuds Confidential,” can be found at https://www.acrgny.org/event-4705858.

* * *

The author, a second-year law student at the Howard University School of Law, in Washington, D.C., is a CPR 2021-22 intern.


Enabling Workplace Purpose with Your Values: A Conversation with Wharton’s Richard Shell

Doing your best on the job requires sticking with your conscience and morals, and honing the skills you need to keep on your path, including your conflict management technique.

So says G. Richard Shell, Thomas Gerrity Professor of Legal Studies & Business Ethics and Management and chair of the Legal Studies and Business Ethics Department at the Wharton School in Philadelphia, who joins International Institute for Conflict Prevention & Resolution President and CEO Allen Waxman for a conversation about Shell’s new book, “The Conscience Code: Lead With Your Values. Advance Your Career,” which was published on June 8 by Harper Collins Leadership.

Shell tells Waxman that “late” millennials and early Gen Z-ers may have a tough time in the workplace. “These are people for whom values are nonnegotiable, in a different way than some of the earl[ier] generations,” says Shell, noting that he has been seeing MBA candidates who are seeking to escape from what they view as unethical work environments.

But, he explains, these employees have insufficient skills to “move the organization toward the good” and to navigate workplaces that push and test their moral codes.

That, says Shell, is the inspiration for “The Conscience Code.”

Shell and Waxman discuss workplace conflicts that fall on middle management arising from a variety of sources, and how managing the conflict can “enable purpose,” in line with CPR’s mission of fostering a dispute resolution culture.

Shell adapted a self-test from “The Conscience Code” on conflict management skills for the new July/August issue of Alternatives to the High Cost of Litigation.  The test advises users on how they face conflict, with the scoring pointing the user to the personal style categories of Advocate, Problem-Solver, Compromiser, Avoider or Accommodator.  The article can be found here.

Please share the video on social media, linked below, and directly on YouTube.


Highlights from Harvard Law PoN’s ‘Negotiation and Leadership’ Program (Updated July 23, 2021)

By Mylene Chan

The Harvard Law School Program on Negotiation offers a Negotiation and Leadership program several times throughout the year. Last month, faculty consisting of six Harvard University professors–Guhan Subramanian, James Sebenius, Daniel Shapiro, Debbie Goldstein, Robert Wilkinson, and Brian Mandell–taught the program. About 70 professionals and executives from around the world attended.

The program provided training in Interest-Based Bargaining, which was developed by Roger Fisher and William Ury in the 1980s through the Harvard Negotiation Project. The classic popular guide to this Harvard model of “win-win” negotiation and a value-creating mindset is “Getting to Yes: Negotiating Agreement Without Giving In,”by Roger Fisher, William Ury, and Bruce Patton (Penguin Books 2011).

In this approach, parties negotiate based on their interests and not their positions, as in traditional bargaining. Parties shift their view of the opposition from adversaries to collaborators, and by doing so, they can then explore the deeper interests underlying their positions to identify potential trade-offs and win-win opportunities.

The Interest-Based Bargaining model can apply in any cultural setting because the core negotiation principles are universal despite variations in communication and presentation styles.

The May 2021 session took place over the course of six half days. Each day, a different teacher presented a new topic and assigned a negotiation exercise adapted from real-life Harvard case studies to practice implementing the concept. After each negotiation exercise, the faculty tabulated the results for a plenary debrief. 

Guhan Subramaniam opened the interactive sessions by introducing the fundamentals of value claiming, also known as single-issue negotiation. Successful value claiming starts with mastering the use of anchors and strategic concessions, while identifying the zone of possible agreement and shaping the counterpart’s perception of it.

Subramanian explained that one must ensure that the negotiating counterpart perceives the process of negotiation as fair, but at the same time, one must deploy concessions at an appropriate rate and scope. Being aware of the influence of the midpoint rule–predicting the final deal price as the midpoint of the first semi-reasonable offer and counteroffer–will make anchors and concessions more effective.

Negotiators can also leverage social proof–the tendency to look at how others behave when making choices–to add pressure on counterparts to conform to articulated norms.

Moving from claiming value, James Sebenius introduced how to create value in multiple-issue negotiations.  Sebenius emphasized that parties must overcome the zero-sum mentality to expand the negotiation pie. Another paramount lesson, he explained, involves understanding the power of probing for information on each side’s underlying interests and valuations. This would lead to discovery of uncommon grounds that negotiators could leverage to strengthen cooperation.  

Sebenius continued by explaining that negotiators should seek strategic moves that offer high value at low cost so both sides are better off.  To maximize value creation, negotiators can also employ multiple equivalent and simultaneous offers.

An unusual technique that Sebenius outlined as a way to overcome sufficiency bias–believing that parties have already done everything to strike the best deal–is to engage in post-settlement settlements. These are settlements in which parties negotiate better and novel terms that were not considered during the initial deal-making process.

Meanwhile, the existing deal remains unaltered unless both deem the post-settlement terms superior to the agreement just signed. Post-settlement settlements capitalize on the trust and goodwill generated during the negotiation to increase joint value creation.

Dan Shapiro presented negotiation from a psychological standpoint through discussing five core concerns of emotions and relationships. Each of the core concerns (appreciation, autonomy, affiliation, status, and rule) serve as a lens to understand and as a lever to improve negotiation.

Shapiro explained that, for example, if a negotiator and the opposing side appreciate one another, the negotiator is more likely to reach a wise agreement. Being appreciated, the opponent will feel more at ease and become more cooperative. Shapiro laid out details of this framework in Beyond Reason: Using Emotions as You Negotiate, which he co-wrote  with Roger Fisher (Penguin Books 2005).

Debbie Goldstein exhorted negotiators not to underestimate the importance of emotions in driving negotiation outcomes. Emotions affect thinking and perceptions of what is happening, shift reservation values, and narrow zones of possible arrangements. The critical lesson is to develop one’s capacity to be a neutral observer of the negotiation so that one can analyze interactive interdependencies, adapt, and deploy appropriate strategies to further the negotiation.

Goldstein and the instructors emphasized listening skills.  If one feels stuck with counterproductive behaviors in negotiation, developing a listening stance to check the understanding of the counterpart’s intentions would help.

Robert Wilkinson built on the concepts covered to bring in more complex organizational challenges. Complex negotiations contain unfamiliar interacting and interconnected elements that challenge negotiators’ abilities to satisfy their interests. Veteran negotiators often wrestle with commonly encountered obstacles such as cultural differences, leadership/organizational problems, spoilers, and radical changes in circumstances.  To make progress in complex negotiations, Wilkinson suggested many techniques–such as generating a sequencing strategy with convincing objectives–to build a winning coalition conducive to reaching a fruitful resolution.

Wilkinson expanded in an email to the author. “When you enter into more complex negotiations, the way in which you manage the process matters far more,” Wilkinson noted, adding, “People often don’t realize the influence they can exert in a negotiation simply by thinking through their process choices. I always encourage people to ask themselves ‘Who am I privileging in this process?’ ‘Who am I excluding?'” Wilkinson’s latest thoughts on negotiation can be found in a recent paper and a podcast available at https://bit.ly/2Uwhgn1 and https://bit.ly/2WcWedx.

Brian Mandell concluded the program by integrating concepts from the previous sessions and offering tactical advice to participants on their real-life negotiation dilemmas. In response to a question regarding how to manage a repeated liar in negotiation, Mandell suggested employing tactical retorts to guide the opponent into revealing the truths, asking questions such as “ Help me understand . . .”; “Walk me through your logic and thinking . . .”; “How do you come to that conclusion?” and “What do you think of that scene?”

Dan Shapiro, who is founder and director of the Harvard International Negotiation Program, commented in an email: “We negotiate all the time–but rarely as well as we could. So PON offers frameworks and tools to help participants hone their negotiation skills. I present a potent method to help negotiators leverage the power of emotions to build authentic relationships, promote information exchange, and achieve value-optimizing outcomes. We’ve applied the model successfully to business and political conflicts around the world, and I love exploring the framework with the exec ed participants, who bring substantial perspectives to our conversations, making for an edifying learning experience!”

The ideas covered in the program are creative and practical. The faculty helped the participants think through habits and behaviors that may not be helpful and how to get unstuck in the moment. Participants left the program with four to five sentences written in small print on a notecard with the essential takeaways from the program. Brian Mandell asked the participants to memorize this aphorism: “Negotiation is the art of letting other people have it your way.”   


The author, an LLM candidate, at Yeshiva University’s Benjamin N. Cardozo School of Law in New York, is a 2021 CPR Summer Intern.


THE MASTER MEDIATORS/ Part I: On Joint Sessions


One of the panels at CPR’s recent annual meeting in Atlanta featured three master mediators: Eric D. Green, of Resolutions, LLC; Hon. Layn R. Phillips, Phillips ADR; and Linda R. Singer, Esq., a JAMS and CPR Neutral.

Guided by moderator Jana Litsey, Senior Executive Vice President and General Counsel and Secretary of The Huntington National Bank, our panelists shared views and best practice tips on the ADR process they know so well. This post, the first in a series, will focus on the almost curiously controversial topic of joint sessions.


“We call it the disappearing joint session,” said Eric Green. “As all parts of a mediation are potentially valuable, I think the trend away from the joint session is a big loss, reflecting a misunderstanding of its potential and use and value. Of course, there are no rules in mediation except that there are no rules in mediation. Every case is different.”

Green noted that lawyers will typically insist no joint session is needed and would in fact be a waste of time—especially if they have him only for one day—because the case is mature and well known to both sides. While he agreed that those would be potential negatives, he has observed over time that the parties rarely in fact understand each other’s cases. Joint sessions have the potential to begin to close that gap.

“When you think about it,” he explained, “the joint session is your best and last opportunity to speak directly to other side. They are your audience and, to have a successful outcome, you must get them to agree to something you will accept. Assuming the session has been properly prepared—with private telephone calls between you and the mediator ahead of time, and with mediation statements exchanged—this is the start of a day’s worth of negotiation and your chance to get your message across to the other side (hopefully someone with real authority). This is your opportunity to establish a connection, demonstrate that you are prepared to be reasonable if they are, and to address the strongest arguments in the other side’s mediation statement.”

Joint sessions also serve an important purpose for the mediator, Green stressed. “If I need to say something to the other side at 5 p.m., I really want you to have said it at 9 a.m. so I can tie my message back to yours. It gives me a mechanism to deliver what is sometimes tough feedback to the other side by deflecting some of it, which can be very helpful.”

Green cautioned, “This is not an opportunity for you to get some emotional satisfaction by beating up on the other side. So don’t waste your time repeating your strongest points or engaging in threats or bombast. Don’t try to stand up and impress your client. And don’t try to impress the mediator—they are not the judge and jury.”

Green summed up, “No one has ever stood up in joint session, like in Perry Mason, and said, ‘I get it now, I’m guilty. I’ll withdraw my case.’ But it starts the process of people beginning to understand risk and see things from the other side’s perspective.”


JAMS and CPR Neutral, Linda R. Singer, described what she sees as a clear regional split, with colleagues on the West Coast coming down on the side of never seeming to utilize the joint session process, with East Coast colleagues being much more open to it.

“Some judge mediators are unaccustomed to managing conflict,” Singer surmised. “It makes them nervous.” But she agreed that the joint session process can be a real opportunity. “The hardest thing,” she described, “is when I convene a conference call and they tell me they’ve all agreed and don’t need a joint session, because it’ll take us until after lunch to get back to where we are in the process now, but then at 4 pm in the afternoon we are still saying the same things we were saying at the start of the day.”

Our third panelist, Layn Phillips, of Phillips ADR, was less enthusiastic about joint sessions than his colleagues. He tends to advocate for shared or exchanged mediation briefs and reply submissions, he explained, and holds the view that mediators mainly earn their money in private caucus sessions. But he did agree that there were circumstances (e.g., in some securities cases) where the joint session, or what he likes to call the “targeted session,” is helpful on topics like damages.

“You might have 25-page opening submissions and several reply briefs,” Phillips explained, “but only three paragraphs dealing with damages, so it would not be uncommon for me in this situation to tell the parties I wanted a focused targeted joint session on damages. This may not necessarily be an opening joint session, but one which could take place later in the day.”

Another example might be if a case is very close to trial. Sometimes this can be a helpful reality check for the clients. “Much depends on your client representatives,” Phillips added. “If they are very sophisticated and prepared, and you’re convinced from pre-mediation submissions and calls that they know the case, having them sit there while a very talented trial lawyer takes their case apart is not necessarily helpful.”

“As everyone here knows,” Phillips summed up, “we’ve all been to joint sessions that are incendiary, or that cover ground that is not only well ploughed but well fertilized, so I try to be very focused on when and under what circumstances I recommend this process.”

Eric Green reported also finding joint sessions to be useful when there are complex technical issues, such as those arising in construction, design or financial cases. In fact, while this is unusual, he reported having a joint session last as long as a week in a case involving technical exchanges involving nuclear plants. “If the parties are insisting on a principles-based and merit-based approach to resolution,” he concluded, “joint sessions can provide an opportunity to demonstrate that you’ve heard the merits of the case. Then the parties can start discussing dollar amounts.”

Layn Phillips provided the final word on this topic, noting that it is not uncommon for him to hold joint sessions late in the day, particularly on non-monetary terms. “The last thing you want to do is to have a quiet, dignified search for a number, and then find out that the parties disagree on fundamental terms such as indemnification or non-monetary points that will turn out to have monetary value.”

Stay tuned to CPR Speaks for more tips from our master mediators, and more great content from AM18…


The U.S. Paris Climate Accord Pull-Out: From a Negotiation Standpoint, A Bit of an Artless Deal?

By John Bickerman

President Donald Trump’s decision to have the U.S. withdraw from the Paris Climate Accord will undoubtedly have many repercussions in many different areas and industries, ranging from energy to environmental and well beyond. But, at its core, Thursday’s action can be boiled down to a deal negotiation. Below are a few basic alternative dispute resolution (ADR) principles, and how they apply to the U.S. Paris Accord pull-out:

Any analysis of negotiation strategy starts with identifying the ‘interests,’ not the positions of parties. One also must assume that parties behave rationally.  

The President has two plausible interests that he was trying to vindicate.  First, he could be trying to do what he said, which was protect American jobs; the second plausible interest is that he was trying to affirm and solidify his political base. The second appears to be the more rational explanation for his behavior. When the President returned from his European trip after failing to endorse fully NATO, his popularity ticked up, almost exclusively with his hard core Republican base. It wouldn’t be surprising if withdrawal from the Paris Accord further solidifies his base and marginally increases his popularity and affirms his promise to the voters he believes elected him.

A corollary would be that it gets the Russia investigation off the front pages, although based on the subsequent news cycles that seems highly unlikely. With respect to protecting American jobs, the better data suggests that this interest will not be achieved and employment in the U.S. could actually be harmed if foreign countries retaliate against the United States by enacting carbon taxes as some analysts have suggested they might. Moreover, there is a seemingly strong case that jobs are being created in the renewable energy sector that would surpass the jobs lost in the fossil fuel industry.  The Washington Post reported that there was a fierce battle in the White House over the decision.  The “withdrawal” side, led by Senior Advisor Steve Bannon, appear to have deluged the President with data that rejected the consensus view. Much of the data presented by the Bannon team was highly suspect, according to the Post.

Remember that only three countries are now not part of the Paris Accord — Syria, Nicaragua and the United States.  It’s extremely rare, perhaps unprecedented, to have such worldwide unanimity on an issue.

 A good negotiator also tries to understand how his counter-parties will react to his negotiating position.  

The Administration, either misjudged or doesn’t care about International repercussions.  Other countries, especially China, Germany and France will step into the vacuum created by the withdrawal of the U.S. As reported by the news media, China intends to ramp up its production of renewable energy products, potentially usurping a role that the United States could have.

The threat of an action often carries much greater leverage than the action itself.  

There is no opportunity under the Paris Accord to withdraw from its terms until 2019.  The President would have had much greater leverage if he had continued to threaten withdrawal between now and 2019 instead of playing his hand now. This line of thinking was apparently presented to the President by Secretary of State Tillerson and other according to news reports.  Clearly, the federal government has lost its leverage in influencing further changes in the pact.  Interestingly, 30 cities, 3 states, including California and 100 companies have formed an alliance that supports the Accord and will affirm their support to the U.N.  This development further undermines the influence President Trump will have on this issue.  It’s rare for a negotiator to dissipate his bargaining power in this manner.

The best negotiators are able to reach strategic and creative compromise with equal negotiation partners, and not only with weaker parties who are more easily pressured into action.

The President has not shown himself to be an especially good negotiator when there are other equal partners with which to negotiate. The strategy he employed in his business, when he was often negotiating with weaker counter-parties and could afford to stake out extreme positions, doesn’t work in International negotiations (or with the other branches of government) where parties are less likely to be “bullied” into agreement.

Time and again, since he took office, the President has staked out extreme positions or made ultimatums.  When his bluff has been called, he has lost all ability to negotiate and has been ignored. That’s what seems to be happening with the Paris Accord. The rest of the world will continue to adhere to the agreement. The United States has squandered its leadership position and has no “fallback” position that would allow it to exert any influence in the future, unless it rejoined the Accord.

There is no art to “re-negotiating” completely voluntary, or multi-party, deals.

Despite the President’s avowed intent to re-negotiate the Paris Accord, that will not be possible.  First, the Paris Accord has only voluntary commitments.  There are no binding obligations, other than the promise of the first world countries to pay for environmental efforts in developing countries.  (So far, the United States has paid $1 billion of the $3 billion it has promised to pay under the agreement.). Second, it’s not possible to renegotiate a multi-lateral agreement.  There simply is no “one” party with which to negotiate.

John Bickerman is the Chair of the International Institute for Conflict Prevention & Resolution’s Environmental Committee, a lawyer and the founder of Bickerman Dispute Resolution, PLLC