Discussing the “Conditionally Cooperative” Approach to Negotiations

By Spencer Shockness.

It goes without saying that the COVID-19 pandemic has impacted the world in a variety of ways. For Arizona courts, the pandemic and the shut-downs accelerated the already existing backlog of cases. In response, Arizona courts made efforts to remedy the backlog, including hosting virtual hearings. A year ago, the Arizona Administrative Office of the Courts implemented a cloud-based digital evidence platform created by Thomson Reuters to reduce the need for a paper-based system. However, in 2022 the courts are still falling behind. For example, the Pinal and Coconino Counties sought to hire additional judges just last month to help with the backlog of cases. In an attempt to catch up on delayed cases, the Coconino County Superior Court has scheduled more than 60 jury trials for 2022 and has already begun to schedule cases for 2023.

The current backlog places a spotlight on methods of resolving cases without needing a full trial, such as a negotiated settlement. While accurate empirical data about settlement rates does not exist, a study by the American Judges Association concluded that 97% of cases are resolved outside the courtroom. Logically, an increase in the number of settled cases would reduce the pile-up of cases headed for trial in counties like Coconino. However, that is easier said than done.

Many factors make cases difficult to settle, including parties maintaining unreasonable expectations regarding the outcome and refusing to compromise. Negotiators who incorporate cooperative techniques alongside competitive techniques may improve the quality and number of deals that they are able to reach. In the aggregate, this may increase the number of settlements and reduce the number of cases hitting the courtroom.

The Negotiator’s Dilemma

The negotiator’s dilemma describes the inherent tension between employing cooperative and competitive techniques in a negotiation. “Value creators,” or negotiators who focus on cooperative techniques, work towards creating joint gains through creative problem solving by sharing and seeking information about the parties’ interests and identifying opportunities for tradeoffs. “Value claimers,” or negotiators who focus on competitive techniques, strive to achieve a better deal than the other party by aiming high, making minimal concessions, and guarding information about their interests.

The dilemma exists because neither philosophy on its own allows the negotiator to operate optimally. A pure “value creator” is vulnerable to exploitation by a counterpart who uses competitive tactics. While the “value creator” can make a large pie for the two sides to divide, they struggle to take a large slice of it.

Alternatively, a pure “value claimer” withholds information crucial to creating mutually beneficial solutions that lead to higher individual gains. The “value claimer” may take a large slice of the pie, but the overall pie is not as large as the one the “value creator” made. Most negotiators naturally focus on one technique or the other. However, a “conditionally cooperative” strategy is recognized as the most effective approach to dealing with the dilemma.

Conflict researcher Robert Axelrod has found through his studies that the “conditionally cooperative” strategy yields the most cooperation between parties and the best overall results. This mixed strategy encourages negotiators to begin openly by engaging in interest-based negotiations. Interest-based negotiations involve sharing and seeking information regarding each party’s underlying interests to identify potential tradeoffs and brainstorm solutions. Later, the parties should move to a distributive dealmaking stage to divide the now enlarged pie. By utilizing both techniques, the negotiator takes a large slice of a large pie.

The Cooperative Phase

During this phase, negotiators should focus on understanding the motivations underlying their counterpart’s positions. For example, negotiators might change the way they ask questions about the demands the other side is making. Instead of asking what they want, negotiators may ask why they want what they want. Focusing on “why” allows the negotiator to understand the other side’s core interests. At that point, the negotiator may begin brainstorming alternative ways to fulfill those interests besides simply acceding to the demands that the other side has made—assuming the negotiator has identified those demands as disadvantageous to meet. Furthermore, understanding the other side’s core interests allows the negotiator to identify areas of interest they potentially have in common.

Sharing information about one’s underlying interests is also beneficial because one may make demands more persuasively by providing justification beforehand. In the business world, author Simon Sinek asserts that people do not buy what someone does, they buy why they do it. By sharing one’s beliefs about the issue at hand and the justifications for their positions, the negotiator allows the other side the opportunity to relate to those beliefs and accept those justifications as important. Later, the other side may rationalize their decision to relate to those beliefs and accept those justifications by making concessions or acceding to demands related to those beliefs and justifications.

At the same time, this cooperative stage of sharing information and brainstorming leaves one vulnerable to competitive tactics. Therefore, the strategy encourages the negotiator to remain conditionally open to sharing information by maintaining a provocable and forgiving disposition. The negotiator should reveal information gradually and wait for reciprocation. If the other side behaves competitively, the negotiator should shift to competitive tactics. However, the negotiator should also forgive the other side and provide opportunities for them to choose cooperation. The negotiator may do this by continuing to make cooperation seem attractive by expressing interest in the parties’ underlying motivations throughout the conversation.

The Distributive Phase

Upon reaching the distributive phase, the negotiator should look for ways to divide the pie based on the solutions identified during the cooperative phase. To maximize value at this stage, the negotiator should use objective criteria to support their demands; which make one’s demands seem more reasonable. Also, negotiators should avoid making unilateral concessions. Furthermore, if through information sharing during the cooperative phase, the negotiator has identified the point at which the other side will walk away, the negotiator may leverage this information to incentivize a deal by convincing the other side that a deal is more desirable than their best alternative.

Employing a Conditionally Cooperative Strategy

Using a conditionally cooperative strategy will likely increase the value of a negotiated outcome on both sides of the scale, thus making it easier for parties to come to an agreement. In an age where a premium is placed on efficient yet effective resolution of disputes, this strategy may prove useful to a multitude of litigators.

"two businessmen shaking hands" by MyTudut is marked with CC BY-NC-SA 2.0.

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By Spencer Shockness

J.D. Candidate 2023

Spencer Shockness is a 2L Staff Writer from Scottsdale, Arizona. Before law school, he graduated Summa Cum Laude from Barrett, the Honors College at Arizona State University with degrees in Management and Business Law. Since beginning law school, Spencer has enjoyed working as a summer associate at Fennemore and looks forward to returning to the firm in the Summer of 2022. Outside of class, Spencer looks forward to his work as a football referee. He has officiated games from the high school level up to NCAA Division II.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.