There are two techniques of bargaining discussed in the Book Essentials of Negotiation. The first is called distributive bargaining. Distributive bargaining is a negotiation technique that is focused primarily on competition. A negotiator that employs this technique views the conflict through the eyes of an extreme competitor. The negotiator wants to win and wants the other party to lose. This technique is primarily used when there is a conflict over a fixed resource. This technique has its advantages as it is a very intimidating and scary tactic. Opponents of a negotiator employing this technique may be caught off guard to the point that they concede the victory to their opponent for the sole reason that they do not have the ability to respond. This technique is very valuable to a client seeking to win something over another person. Conceivably, this technique may be employed in divorce disputes, employment disputes, or even contracts for star athletes.
A client whose attorney utilizes this technique stands to gain much from it if it is done intelligently and efficiently. However, often times this technique does not serve to preserve relations or even yield the results the client wants. Attorneys using this technique may make their clients vulnerable to losses which might cause more problems than the ones currently on the table. For example, in an employment dispute, if the attorney representing the employer refuses to budge on his settlement figure for the ex-employee, he may subject his client to even more liability should the case escalate and proceed to trial. Employing a win-lose technique opens the door to loss should the other party not back down. Furthermore, attorneys using this technique may not be able to see the other side’s point of view if their attention and focus is only on winning at any cost. They may not be able to see alternatives that yield positive results for both parties. Attorneys should be hesitant to use this technique and, when choosing to employ this technique, make sure that they do not subject their client to additional liability.
The second bargaining technique is called integrative bargaining. This technique is focused on finding a result that is amicable to both parties. Attorneys using this method look to win-win strategies or techniques. They attempt to find solutions so that both parties can do well and achieve their respective goals. This technique involves identifying additional options or finding unique ways to handle the problem. Attorneys using this method think outside of the box. They are not driven by competition, but rather results. Moreover, the results that the attorneys are focused on are positive results for both parties. This method, unlike the distributive bargaining method, does not tend to destroy relationships. Rather this method fosters relationships and allows parties to resolve conflicts without adding more emotion and anger because one party will not budge.
This method has great advantages in that it benefits both parties but it is not without its costs. Attorneys using this method may overlook other options that put their client in a better position simply because they want the other side to walk away happy as well. Some problems are not easily solved and others are never solved with both parties happy. Using this method, an attorney may compromise his or her client’s position simply by being too accommodating. This is not to say that all attorneys should walk away from this approach and adopt the former discussed. Rather, attorneys should consider finding a medium between the two. By doing this, attorneys will be able to be relationship conscious while preserving their client’s interests and positions. In the end, there is no real good solution or method to negotiation. Attorneys should try to be flexible and accommodate where they can and should be mindful of the times that they cannot budge on certain issues. Budging on an issue simply to resolve the dispute may not always be in the best interest of the client and will almost always result in a malpractice claim being filed against the attorney.
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