July 20, 2010

Negotiation Scenarios Where No Deal is the Best Result

By Art Hinshaw

Last week I asked this question on the AALS list-serv:

I’ve been using many of the same role-play scenarios in my Negotiation class for years and all of them have a ZOPA in there somewhere.  I’ve found that the students get trained to expect there to always be a deal there, which in some ways is good.  But, I want them to experience a negotiation where the best deal is for the parties to walk away.  Any suggestions?  

Since it’s mid-late July I didn’t expect much feedback for a while, but I received 8 responses in the course of an hour.  Not all had specific suggestions, but still, that is fast.  This is part of why I like working in this field – great colleagues from across the country.  Thanks for the prompt responses and here are the suggestions I received: 

  • Chuck’s Wagon – available in the teaching manual for the book Negotiation: Process for Problem Solving w/ C. Menkel Meadow, A. Schneider (she’s everywhere) and L. Love 
  • HSN and OCN from Joe Harbaugh’s 1986 PLI materials 
  • Bullard Houses – available from Harvard’s PON Clearinghouse and in the teaching manual for the first edition of Negotiation Theory and Strategy by R. Korobkin 

Furthermore Michael Moffit (he’s everywhere too) sent the following email explaining why he wrote Chuck’s Wagon and how he uses it. 

I wrote the “Chuck’s Wagon” case more than ten years ago as a replacement for “Bullard Houses,” which I found lacking in a few ways.  I must have given Andrea permission to use Chuck’s Wagon sometime along the way.  I know that folks at a number of schools have been using it with my permission as well. 

The case aims to teach not only the no-ZOPA point, but also to do it in the context of lawyer-client relationship, and to add in some disclosure issues.  My experience using the case as a teaching tool is that it works far better to teach the roleplay as a BATNA case, rather than as a no-ZOPA case.  That is, for any given student (like any negotiator), the threshold question is not about the existence or size of a ZOPA.  Instead, it’s about whether the best available deal on the table is superior to the best available course of action away from the table.  Focusing on that lesson has two benefits with the case: (1) it mirrors the best advice we’d give negotiators, and (2) it avoids inviting the class to view the exercise as an argument about whether a ZOPA exists under this or that set of assumptions.  Most students are experienced enough with fighting hypotheticals that there’s some risk they’ll be distracted from the larger teaching point, if they see a window. 

One last teaching thought: I assign this case as an out-of-class exercise, in which each student has  to submit a memorandum to her or his client outlining the results of the negotiation.  This serves three purposes: (1) it eliminates the “we would have done X if only we had enough time…” conversation, (2) it amplifies the pressure some students feel to settle, because they (inappropriately) imagine that if they need to report to their client, they need to reach a deal, and (3) it gives me an opportunity to address professionalism issues in the lawyer-client relationship.

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