Rethinking Negotiation Tactics: Why One-Size-Fits-All Strategies Often Fail

When we look at much of the conventional literature on negotiation tactics, one thing stands out: the assumption of universal applicability. Many negotiation guides suggest there are simple, fixed rules—such as "never make the first offer" or "always draft the final agreement"—that, if followed, will always maximize individual gain. But real-world negotiation is far more complex.

In her seminal article Toward Another View of Legal Negotiation: The Structure of Problem Solving, Professor Carrie Menkel-Meadow critiques this rigid approach. She points out that strategic advice is often given without any consideration for context, such as different client desires, varying cultural backgrounds, or situational dynamics (Menkel-Meadow, 1984, pp. 776, 778–780).

What is astounding about the conventional literature on tactics and strategies is the assumption of universal applicability. Strategic exhortations are offered without reference to how negotiations might vary in different contexts or under different circumstances, such as under the influence of various clients' desires. Negotiators are admonished to never make the first offer and to always draft the final agree ment as if there were a few simple rules negotiators should obey in order always to maximize individual gain .... The recommended strategies may not work even on their own terms. Many commentators have offered a number of competitive strategies designed to force the other side to capitulate. The difficulty with all of these strategic exhortations is the assumption that the other side can be bullied, manipulated or deceived. It is true, f or example, that some will wilt under pressure, but others are likely to respond in kind. Moreover, even those who wilt at the negotiation table may be resentful later and exercise their power either by failing to follow through on the agreement or by seeking revenge the next time the parties meet. Many of these strategic exhortations may work against the negotiator, even in an adversarial negotiation. For example, if, as Meltsner & Schrag suggest, the negotiator chooses his own office for greater comfort in negotiating, the other side may be less comfortable and less amenable to open discussions. In addition, choosing one's own office for comfort minimizes the chances of leaming about the other party by not negotiating on their "turf' or by keeping the other party from its sources of information, such as office files. On a more mundane level, the choice of one's own office for comfort may actually increase discomfort by encouraging interruptions from co-workers and telephone calls'. Thus, these strategic exhorta tions, designed to put the other party at a disadvantage, may not even be effective on their own terms. The literature is replete with advice to overpower and take advantage of the other side. But as one of the popular guides to negotiation has so wisely stated, "a tactic perceived is no tactic." If two competitive negotiators read the same literature it is difficult to see how these strategies will be employed to maximize individual gain. Who will win when both sides know all the same tricks?

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. Rev. 754, 776, 778–80 (1984).