CLE: 2010: Negotiating The Ethical Way

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CLE: 2010: Negotiating The Ethical Way

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L. Wayne Scott

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St. Mary's University School of Law San Antonio Texas Alumni Homecoming, St. Mary's University School of Law Alumni Homecoming

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2010-03-12

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St. Mary's University School of Law Alumni Homecoming

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RFC3778

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English, en-US

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STMU_HomecomingCLE2010Scott

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NEGOTIATING THE ETHICAL WAY
By Prof. L. Wayne Scott
St. Mary's University School ofLaw
San Antonio, Texas
March 2010

L Introduction.
Hopefully, you will not be frightened away by the title of this paper. It is not going
to be a sermon on ethics. Rather, it is going to be a suggestion for the combination of a
number of simple skills, to allow the successful negotiation of any problem, whether simple
or complex.

Some Definitions. The title may seem inconsistent. The combination of the words
"ethical" and "negotiate" may seem as inappropriate together as the words "oil" and
"water," (as in they don' t mix). 1 Recent developments and studies, concerning the benefits

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of cooperation, suggest otherwise. In fact, the simple definition of the terms indicates
congruence, and not conflict. "Ethical,O as used in the context of negotiation, refers to
"Being in accordance with the accepted principles of right and wrong that govern the
conduct of a profession.D The American Heritage Dictionary (3d Ed. 1992), page 630.
To OnegotiateD isOto confer with another or others in order to come to terms or reach an

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agreement. ...to arrange or settle by discussion and mutual agreement. . . .0 ld, page

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1209. To negotiate ethically, then, is to conduct a principled negotiation? This can be

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The term OethicalD should not be confused with any concept of morality, but is used here to refer to
attempts to introduce clarity, substance, and precision of argument into the domain of negotiation.

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A number of different terms could be used to describe this form of negotiation. Tom Rusk, M.D., in his
book The Power ofEthical Persuasion (1993) refers to it as ethical persuasion. Others refer to it as
cooperative bargaining. Robert Axelrod, The Evolution of Cooperation (1984); Gerard I. Nierenberg,
Fundamentals of Negotiating (1987)

contrasted with Opositional bargaining.O
inconsistency.

Here, definitions indicate a conflict or

To DbargainD is to negotiate the terms of an agreement, as to sell or

exchange.DId, page 1209. DPositionD as used here means DA point of view or attitude on a

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certain question .... D ld, page 1413. To bargain from a position is, then, to bargain from
oneDs own point of view or attitude.
Religious and/or ethical training aside, most people grow up learning positional
bargaining, and if it is not learned earlier, it is learned upon entering the marketplace or
legal profession. In particular, it is learned in the process of contracting and/or litigation. It
is frequently said that if you donDt look out for your own interests, who will? Thus, it is
common to bargain in order

to reach the greatest individual gain.

For attorneys

representing the rights of others, the gain is for the individual, and the attorney is trained to
see it as a duty to gain the greatest possible benefit for the client?
Thus, when negotiating a contract, the negotiator or lawyer, by nature, will seek to
include only clauses that benefit the self interest; they seek to win the contract. In litigation,
the attorney and the client likewise seek to win. Winning, however, is a relative thing. For
every winner, there is a loser. The positional bargainer aims at a win/lose conclusion.
Those advocating principled or ethical negotiation ask the simple question: Do you
always benefit the most by always attempting to win? Contracts which gain an advantage at
the cost of a relationship or future business, are not necessarily victories. Lawsuits that cost
more in terms of defense ·cost than the remedy sought are not Dwins.D Negotiations or
litigation, which result in less than could be had for both sides reflect a clear loss, even
though one side gains more than the other. The principled negotiator aims for a win/win

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Simply stated, most are trained to become value claimers and not value creators. Those working with
principled, cooperative, or ethical negotiating techniques attempt to accomplish the reverse: to become
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situation.
Most writings on negotiation emphasize the importance of persuasion. Principled,

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cooperative, or ethical negotiation, however, does not address persuasion, in the sense of
one person convincing another of the correction of his/her point of view.

Rather the

emphasis is on persuading people to treat each other

0...with greater respect, understanding, caring, and fairness. This method is equally
applicable to intimate relationships, friendships, families, and professional
environments.

Ethical Persuasion surpasses other problem-solving negotiation

strategies, by helping people communicate to each other what it feels like to live in
their separate, private words of experience.O Tom Rusk, M.D., The Power of

Ethical Persuasion (1993).
These are vague concepts, best explained by example.

II. An Example 4 To Work From:
Neighbor Smith, bothered by neighbor JonesO dogs' aimless wandering in his yard,
decided to build a chain-link fence between his house and the house of his neighbor, Jones.
Smith investigated the cost, and found that a chain link fence was the most economical and
effective means of restraining the dogs. Money was not a problem, but Smith was not the
type to spend more than was necessary. While brick and wooden fences were the norm in

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the upscale neighborhood where he lived, he saw no need to keep up with the rest of the
snooty neighbors.

value creators.
4

Note: This example is as it was first presented at an institute in 1994. No corrections or
changes have been made. At the end of the paper, you will fmd a decision by the Texas
Supreme Court, which decided on 2/13/2004. This opinion bears a striking resemblance
to the problem discussed in the 1994 example. The two are presented together for your
thought. LWS
3

Smith was a little irritated that his neighbor, Jones, did not come to meet or
welcome him when he moved in ten years ago. In fact, until the incident in question, they
had never done more than exchange casual waves as they went for their mail or morning
paper.
Jones, likewise knew little about his neighbor. Jones did know the neighborhood
and was proud of its consistently high building standards. But he knew that he did not like
chain-link fences, and when the first load of construction material arrived at SmithDs house,
he could see that Smith was going to build a chain-link fence. Jones had considered
constructing a five-foot solid brick fence that would block the view of SmithDs messy patio,
but had abandoned it when he discovered that the cost would be $5,000, as compared to
$2,500 for a wooden fence and $1,500 for chain-link fence. Jones learned that, where used,
brick fences have tended to increase the value of the property in their exclusive
neighborhood, wooden ones have maintained the value of the property, and chain-link
fences have decreased the value of the property. Jones had abandoned the fence idea when
his car blew a gasket, and he decided to purchase a new car.
As he watched the supplies for the chain link fence being unloaded, he groaned and
was rather sorry that he had not gone ahead with his plans. There is nothing I can do, he
thought. Smith had the right to build a fence on his own property.

However, when the

contractor came to begin the fence, he laid out a line that Jones DknewD was on his property.
Jones called Smith, told him of the encroaclunent, and demanded that the line be moved.
Smith refused, stating that he was equally certain that the fence was being located Dwell
within my property lines.D According to Jones, the fence does not encroach by much, but
from JonesD understanding (from the ground references he was shown when he bought his
property), it did encroach by at least six-inches, and possibly by six-feet.
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III. How Many Ways Are There To Resolve A Dispute Or Reach An Agreement?
How should this dispute be resolved? If the parties simply take positions, they will,
all-too-often, each say: DIDm right.O Other than filling the air with words, what good will
that do?
litigation.

Assuming that both are financially able to do so, they may well end up in
For purposes of discussion, asswne that they do Ogo to law£0

"Go to

mattresses"5

A.

The Litigation Scenario.

Since Smith refused to listen to reason, Jones

employed an attorney to seek a temporary injunction. Smith responded by employing his
own attorney. Both then had survey~ done. Since the respective deeds made references to
two prior surveyorOs marks, each mark being different from the other, the surveys ended up
in conflict. The case was set for trial. The judge, busy with an upcoming capital murder
case, listened to more than he wanted to hear, and made the injunction permanent. Smith,
irate at such an irrational ruling, instructed his attorney to file an interlocutory appeal to the
court of appeals. The appeal was successful because of a procedural matter. The case was
reversed, and the trial judge, desirous of being rid of the matter, dissolved the injunction.

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Jones, out of money, glumly watched the chain-link fence go up. Smith, in the mean-time
used up his savings, and cashed in all of his life insurance policies to pay for his expenses in
constructing the fence. He hopes to recoup all loses from his title insurance company,
which denied coverage.

In the process of disputing the six-inch boundary, the parties spent, jointly, in the
neighborhood of $18,000 fighting over whether to build a $1,500 chain link fence. Both
have made claim upon their respective title insurers. Each insurer has opened claim files,
set the file for investigation, development, review, and consultation with counsel, etc. The
5

"The Godfather. "

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expense to the court system, by its nature, is not calculable, but involves hundreds of hours
of time when the work of clerks, secretaries, bailiffs, court reporters, briefing attorneys, and
judges are included.
Could they have done better? A better question would be whether they could have
done worse?

B. The Principled Negotiation Alternative.
Suppose that Smith had asked to see what Jones relied upon to support his position;
or that Jones had asked to see what Smith relied upon to support his position. I.e., suppose
either had looked behind the otherOs position?
At the heart of principled negotiation is the concept of identifying mutual interests,
and searching for options that satisfy the interests of both parties. If the interests are both
satisfied, there is no problem. If one interest is not satisfied as well as one party would like,
that party must ask whether there is a better alternative available, before taking any other
course of action. Where the interests are in conflict, and there are no mutually satisfactory
options, the parties are urged to look to legitimate standards for the resolution of the
conflict. In the course of the dealings, the parties are urged to pay attention to their forms of

communication, particularly in listening to the interests of the other side, with the purpose
of improving the interaction or relationship between the parties.
With these simple concepts in mind, how could Smith and Jones have handled their
case more appropriately. There are a myriad of answers.

Interests: Interests arise out of needs,6 desires, concerns and fears, and define the
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Needs [as identified by Araham H. Maslow, MOTIVATION AND PERSONALITY (1954)/:
1) Physiological (homeostatic) needs. The satisfaction ofbiological drives and urges such as hungerJatigue,
sex, etc. These physiological needs are the most dominate ofneeds. E.g., hunger will cause one to forget the
needfor esteem.
2 Safety and security needs.
3) Love and belonging needs.

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problem. Roger Fisher, William Ury and Bruce Patton, Getting to Yes (2d Ed. 1991), page
40. 7
Jones has a number of interests, as does Smith. Some of these may be at odds (or
opposed); others may make no difference to one, but be important to the other. Still other
interests may be compatible. In principled negotiation, the effort is to find compatible
interests that can be satisfied by mutual options, often with indifferent interests traded for
interests of concern.
To discover interests, ask simple questions such as DWhyO and Why not.O Switch
places with the other party, and look at their side of the issue.

JonesOInterests:
1) He would say that his interest was OTo stop the fence from being built on my
property,O but this would only be a position. His real interest is to maintain the
integrity of his border.
2) To stop a fence from being built, unless it is brick, or at least wood.
3) To shield himself from the annoying view ofSmithOs messy patio.
4) To maintain or improve the value of his home.
5) To ·maintain a friendly, or at least not inimical, relationship with the neighbor,

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Smith.

4)
5)
6)
7)

Esteem needs.
Needs for self-actualization.
Needs to know and to understand.
Aesthetic needs.
Note: "Maslow pictures each successive need as emerging after a prior need has been satisfied . ...
Usually the previous need is only partially satisfied before the emergence, bit by bit, of a new-felt need.

***

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"To sum up, an individual's existence is a constant struggle to satisfy needs; behavior is the reaction of
the organism to achieve a reduction of need pressures; and behavior is direct to some desired goal. Our
objective is to employ these facts about human needs in successful cooperative negotiation." Gerald I.
Nierenberg, THE ART OF NEGOTIATING (1981), p 108.
7

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Hereinafter referred to simply as Fisher.

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6) To avoid litigation or court costs.
7) To avoid the waste of time on a non-productive dispute.
SmithOs Interests.
8) He would say DTo build the fence that I want on my property. .0
9) To build a chain link fence; that is, a fence that is most effective for the least
amount of money.
10) To keep JonesO dogs off of his property.
11) To maintain or improve the value of his home.
12) To maintain a friendly, or at least not inimical, relationship with the neighbor,
Smith.
13) To avoid litigation or court costs.
14) To avoid the waste of time on a non-productive dispute.

Reconciling Interests.

Once the interests of each party is identified, it is then

necessary to reconcile as many of those interests as possible. (Fisher, page 40). As part of
the reconciliation process, the interests should be checked, to ensure that they are truly
interests, and not just positions. Further, they should be prioritized, and then placed in order
of importance.
In the fact situation set out above, it should be apparent that each of the parties have
identical interests. Each wants:
15) To maintain the integrity of what each considers to be their boundary.
16) To obtain a fence that will
17) Shield each from the other.
18) To improve the value of their homes.
19) To maintain, or make no worse, their relationship.
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20) To avoid dispute costs.
21) To avoid the waste oftime.
While some of these interests, such as the first, may appear to be opposed, it is very
possible that options can be foWld to satisfy the interests of both parties.

Inventing Options. An option is a choice that can be made, which will satisfy an
interest or interests. The choice is referred to as an alternative, if it can be accomplished
without cooperation from the other party. Thus, the filing of suit is an option that will be
discussed as an alternative.

Obstacles to Invention Options. Fisher (page 57) identifies Ofour major
obstacles that inhibit the inventing of an abundance of options:
a) premature judgment;
b) searching for the single answer;
c) the assumption of a fixed pie; and
d) thinking that Osolving their problem is their problem.DO
Smith was guilty of premature judgment in constructing a fence on a border with
JonesO property, without first discussing it with Jones.

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Jones, in turn was guilty of

premature judgment, in assuming that he, and not Smith, was right on the location of the
border.

In the litigation scenario described above, both searched for a single answer,

assumed a fixed pie, and thought that the problem belonged to the other.

Arriving at Options-Brainstorming.

The possible options available to satisfy

most, if not all of their interests, are almost limitless. When faced with a problem, those

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involved should first seek to invent as many options to satisfy the interests as possible. This
should be done without commitment.

Thus, invention is possible without filtering or

judging. The list of options for Jones and Smith could look something like this:

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a) Both could agree on a mutual boundary.
b) Smith could buy the six inches of disputed border.
c) Smith could move the fence six inches.
d

Jones could surrender the six-inches.

e) Jones could give Smith the six inches in return for an upgraded fence.
f) Jones could volunteer to build a brick or wooden fence.
g) Both could share in the cost and effort of building a better fence, including
splitting the difference on their disputed six inches.
h) Smith could buy JonesO house, and do what he pleases.
i)

Jones could buy SmithOs house, and do what he pleases.

j) They could select an independent surveyor to establish the true boundary line.
k) One could prove to the other the validity of their position on the boundary.

After Brainstorming. After brainstorming, the no-criticism rule can be relaxed, and
each can identify the best options on the list, reducing the size of the list. Jones might
nominate (b), (c), and (d), while Smith might nominate (e), (f), and (g). Looking at the
remaining list, they, most likely will abandon (h) and (i), and reluctantly add (a) to the list
for continued consideration. Each, however, will have to carefully weigh G), use of the
independent surveyor. The last possibility, (k), that of proving the validity of each boundary
claim is a possibility, if definitive proof exists. Regrettably, all too often the OproofO is in
conflict, or is perceived to be in conflict.

Identify the Shared Interests. Shared interests are present in most negotiations;
they only have to be identified. They should be viewed as opportunities that must be
developed. But, by stressing shared interests, the negotiation becomes friendlier and more

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likely to end in success. 8
In the hypothetical, both Smith and Jones share an interest in building a fence, and

in avoiding litigation costs. With that in mind, the options of allowing Smith to construct
the fence becomes more realistic, it is only the terms of doing it.

Considering the Alternative. The options, as refm.ed, are also weighed against the
alternatives. Each can go to court. If the alternatives are better than the options, then the
party will, in all likelihood resort to that alternative. In that instance, the partyOs best

alternative to a negotiated agreement (BATNA) will prevail. (Fisher, page 97). If the
option(s) are better than each partyDs BATNA, then the option(s) should be accepted rather
than the BATNA.

If each party will consider the otherDs options and alternatives from the otherDs
perspective, they will have a greater chance of success. Knowing, for example, that the
other does not have a great BATNA gives some leverage, but fmding an option that will
satisfy the otherDs interest is more likely to lead to an agreement. Thus, agreeing to build
the fence together, or trading the land for the upgraded fence are very possible results.

Legitimacy. If the parties are having difficulty in compromising and reaching an
agreement on one of the options, the ultimate bargaining tool is legitimacy. There are many
forms of objective criteria available, depending upon the controversy, as in the market value
of disputed goods, precedent, scientific judgment, professional standards, costs, etc.

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(Fisher, page 80). In this instance, if both parties insist on their version of the boundary, if
both cannot agree on a compromise fence, etc., they still do not have to go to court. They
can simply accept alternative option G) and agree upon an independent surveyor to establish

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If an option can be found which will satisfy the interests of each side, it is generally referred to as an
OelegantO option.
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the correct boundary.9
Communication. The key to most negotiations rests in the form of communication

between the parties. Had Smith gone to Jones before beginning the fence, and asked Jones

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to point out his understanding of the boundary, there probably would have been no dispute.
Obviously good early communication is the best form of negotiation that there is. But,
when people lock themselves into a position, as Smith did in laying out the fence line alone,
and as Jones did when he saw what he considered to be an invasion of his land,
communication becomes more difficult.

Positions have been assumed, and they are

difficult to abandon.
Once into the controversy, as Jones was, upon seeing the Dencroachment,D
communication can make all the difference. If Jones goes to SmithDs house, bangs on the
door, and screams obscenities, one result is likely. If he knocks, and asks if Smith might
come over for a drink to discuss a common problem, and then calmly asks Smith to show
him how he arrived at the fence line, another result is probable. Asking why Smith wants

the fence, what his goals and objectives (interests) are, before doing anything, will yield
even greater gain. Simply fmding out that his dogs have given Smith a problem, and
offering an apology, may be all that is necessary for Jones to start Smith on the road to an
agreement.
To be an effective communicator, one must listen, and listen actively. One must be
open to persuasion. In talking, precision is required. Speak to be heard, and then make sure
.that you are heard.

Ask what the other person understands from what you have said.

Miscommunication can be as disastrous as no communication.

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This can be carried as far as the parties want to and can afford. For example, each could appoint a
surveyor, and let the two surveyors select a third to settle any disputes between them. It might be
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It is important to recognize the role of feelings in every step of the negotiation
process, for feelings are facts that must be dealt with. It is in the communication process,
listening and relating, that we can learn of, and tell of, feelings. In all probability, it will be
feelings that drive Jones and Smith to the litigation process, more than.the stake involved.
Relationship.

Something that is too easily overlooked in negotiation, whether

adversarial or cooperative, is the future relationship of the parties. The relationship that
remains after the negotiation may be more important than anything, particularly where
people must live side-by-side, continue to work together, or even to be in contact. Can you
imaging the problems that Smith and Jones will have if they go through the litigation
process described at the beginning of this paper?
Every effort should be made to improve the interaction of the parties. It is important
to be hard on the problem, and respectful of the people involved; that is to separate the
people from the problem.
Commitment. If the parties do reach an agreement, whether it is to build the fence

together, or to hire an independent surveyor, they should make clear what each is
committing. They should be sure that the commitments are subject to being fulfilled. For
example, does Jones have the money to contribute to the construction of the fence; is there
an independent surveyor available? They should reduce the agreement to writing, making it
operational and compliance prone.

Conclusion
There is not one word in this paper that is not a simple statement of common sense.
The idea of looking at each of the components of cooperative or principled negotiation
Interests,

Options,

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(Communication,

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expensive, but not as expensive as litigation.

Alternatives,

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Legitimacy,

Relationship,

and

Commitments) is hardly controversial.

The concepts of communications, including

purposeful listening and careful speaking, involve simple acts of common courtesy. This
being true, why are there so many disputes that could be resolved by the application of these
principles? Possibly the mere act of reciting these common ideas will aid in avoiding
disputes and resolving those that come despite best efforts.
Those writing about these subjects, and teaching these principles, have uncovered a
simple way of dispute resolution. Try it, and if it works, help spread the word.

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Kirk E.

Supreme Court of Texas.
and Suzanne K. Martin, Petitioners,

MARTIN

v.
William M.

AMERMAN

and Carolyn Frances

Amerman,

Respondents.

133 S.W.3d 262
(Tex. 2004)

*263 Cathy J. Sheehan , Plunkett & Gibson, Inc., San Antonio, for Amicus Curiae.

Walter D. Snider, Snider & Morgan, L.L.P., Beaumont, for Petitioner.
Richard N. Evans, J. Mitchell Smith, Germer Gertz, L.L.P., Beaumont, for Respondent .

Justice O'NEILL delivered the opinion of the Court.
In this case we must decide whether a trespass-to-try-title action is the exclusive means
to resolve a dispute between neighbors over the proper location of a boundary line
separating their properties, or whether a declaratory judgment action is also an
appropriate way . We hold that the Texas trespass-to-try-title statute governs the parties'
substantive rights in this boundary dispute and that they may not proceed under the
Texas Declaratory Judgments Act to recover attorney's fees. Accordingly, we affirm the
court of appeals' judgment. 83 S.W.3d 858.
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This dispute involves locating the proper boundary line between two residential *264
properties in Beaumont, Texas. In 1987, Kirk and Suzanne Martin purchased a home
located on a 2.005-acre tract of land. Some six years later, the Martins erected a chainlink fence along what they believed to be their property's eastern boundary next to a
wooded area. In 1997, William and Carolyn Amerman purchased their home on a 1.255acre tract located to the east and around the corner from the Martins. The disputed
boundary line forms the eastern edge of the Martin tract and the western edge of the
Amerman tract. In 1998, the Amermans tore down the Martins' fence, believing that it
illegally encroached on their property.
Although unable to agree on the boundary's location, the parties do agree that their
respective chains of title do not conflict. All of the Martin acreage derives from the
Crowell/Nelson grant and all of the Amerman acreage derives from the DeVoss/Pye
grant. The dispute in this case arises from two conflicting surveys. The Martins' surveyor,
Mark Whiteley, surveyed the Martin property in 1993 and set the northeast corner at a
one-and-one-half-inch pipe identified in previous surveys as the proper corner location.
Gilbert Johnston, the Amerman's surveyor, conducted his survey of the Amerman tract
three years later and placed its northwest corner at a five-eighth- inch rod . The
surveyors' differing placement of these corners causes the thirty-foot overlap at issue in
this case.
The Martins filed suit seeking a judgment declaring the proper boundary line and
granting permanent injunctive relief. They also alleged trespass and wrongful
encroachment, adverse possession, trespass to try title, boundary by recognition and
acquiescence, and an action to quiet title, but ultimately nonsuited all claims except
those for declaratory judgment and to remove the cloud on their title caused by the
recorded Johnston survey . The Amermans filed a counterclaim for trespass to try title
and also sought injunctive relief. Because the parties agreed that ownership of the
disputed thirty-foot strip of land depended upon determining the boundary's proper
location on the ground, the case was submitted to the jury solely as a boundary dispute.
After hearing testimony about survey methods and the priority placed on different
monuments, the jury found that the Martins' surveyor properly placed the boundary and
that the Amermans' recorded survey placed a cloud on the Martins' title. The trial court
rendered judgment on the jury's verdict and awarded the Martins attorney's fees
pursuant to the Texas Declaratory Judgments Act. See Tex . Civ. Prac. & Rem.Code §
37.009.
The court of appeals affirmed the trial court's judgment in part, but held that, because
15

the boundary dispute involved title to a strip of land, it was in the nature of a trespassto-try-title action and must be treated as such. 83 S.W.3d at 864. Because the trespassto-try-title statute does not provide for the recovery of attorney's fees, the court of
appeals reversed the Martins' fee award. Id. This holding directly conflicts with Goebel v.
Brandley, 76 S.W.3d 652 (Tex.App. Houston [14th Dist.J 2002. no pet.), in which the
court held that a suit to declare a boundary's location may properly be brought as a
declaratory judgment action. We granted the Martins' petition for review to resolve this
conflict among our courts of appeals.
II
The Texas Property Code provides that "[a] trespass to try title action is the method of
determining title to lands, tenements, or other real property." Tex. Prop.Code § 22.001.
The Texas Declaratory Judgments Act provides that "[a] person *265 interested under a
deed ... may have determined any question of construction or validity arising under the
instrument ... and obtain a declaration of rights, status, or other legal relations
thereunder." Tex. Civ. Prac. & Rem .Code § 37 .004(a). The parties disagree about these
statutes' application when the sole question before the court involves determining the
proper boundary line between adjoining properties.
We have said that boundary disputes may be tried as trespass-to-try-title actions, but
not that they must. Hunt v. Heaton, 643 S.W.2d 677, 679 (Tex.1982); Plumb v.
Stuessy, 617 S.W .2d 667, 669 (Tex.l981) . We have never considered whether a
boundary dispute may also be tried as a declaratory judgment action . These two
statutory avenues differ significantly in both their proof elements and the relief they
afford.

ill~

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~!£a

ill The Declaratory Judgments Act provides an efficient vehicle for parties to
seek a declaration of rights under certain instruments, while trespass-to-try-title actions
involve detailed pleading and proof requirements. See Tex.R. Civ. P. 783-809. To prevail
in a trespass-to- try-title action, a plaintiff must usually (1) prove a regular chain of
conveyances from the sovereign, (2) establish superior title out of a common source, (3)
prove title by limitations, or ( 4) prove title by prior possession coupled with proof that
possession was not abandoned. Plumb, 617 S.W.2d at 668 (citing Land v. Turner, 377
S.W.2d 181. 183 (Tex.1964)). The pleading rules are detailed and formal, and require a
plaintiff to prevail on the superiority of his title, not on the weakness of a defendant's
title. Land, 377 S.W.2d at 183.
The trespass-to-try-title statute was originally enacted in 1840 to provide a remedy for
resolving title issues. Tex. Prop.Code 22.001(a) ("A trespass to try title action is the
method of determining title to lands .... "). It also eliminated ejectment actions in Texas,
which had traditionally been used to restore possession of property to a person legally
entitled to it. See Tex. Prop.Code 22.001(b); see generally 2 Powell on Real Property
246[3] (1991). The statute is typically used to clear problems in chains of title or to
recover possession of land unlawfully withheld from a rightful owner. See Standard Oil
Co. of Tex. v. Marshall, 265 F.2d 46, 50 {5th Cir.1959); City of El Paso v. Long, 209
S.W.2d 950. 954 (Tex.Civ .App.EI Paso 1947. writ refd n.r.e.).
The strict pleading and proof requirements applicable to trespass-to-try-title actions have
sometimes produced harsh results. See, e.g., Hunt, 643 S.W.2d at 679 (holding that
Hunt's failure to timely file his abstract showing chain of title was fatal to the trespassto-try-title action he pled whether or not the case turned factually on the question of
boundary), Id. at 680 (SONDOCK, J., concurring) (noting the "unnecessary
technicalities" of trespass-to-try-title actions). To lessen these harsh effects, the Court
has relaxed the trespass-to-try-title actions formal proof requirements when the sole
dispute between the parties involves a boundary's location . See Plumb, 617 S.W .2d at
669 . In Plumb, we recognized that a boundary dispute may be tried by a statutory action
of trespass to try title. I d. (citing Schiele v. Kimball, 113 Tex . 1. 194 S. W. 944 (1917)).
In such a case, a recorded deed is sufficient to show an interest in the disputed property
without having to prove a formal chain of superior title. See Plumb, 617 S.W.2d at 669:
see also Brownlee v. Sexton, 703 S.W.2d 797, 800 (Tex.App. Dallas 1986, writ refd
n.r.e.); Rocha v. Camoos, 574 S.W .2d 233. 235- 36 (Tex.Civ .App. Corpus Christi, 1978.
16

-

-

-

-

....

-

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no writ). We articulated a test to determine if a case is one of boundary: "*266 If there
would have been no case but for the question of boundary, then the case is necessari ly a
boundary case even though it may involve questions of title." Plumb. 617 S.W.2d at 669.
We have never ind icated, though, that by lessening the trespass-to-try-title actions more
formal proof requirements we intended to make boundary disputes a distinct cause of
action. It is over this point that the parties disagree.
The Martins argue that this case does not involve a title dispute as contemplated by the
trespass-to-try-title statute because the parties stipulated that their respective chains of
title do not overlap. The Martins contend that the court is not determining substantive
title rights but is merely declaring the boundary's location between adjoining properties.
See Goebel. 76 s . W .3d at 656 . The Amermans, on the other hand, contend th is case is
necessarily about title because both parties assert competing claims of ownership to the
same thirty-foot strip of land. See Vanzandt v. Holmes. 689 S.W .2d 259, 261-62
(Tex.App .Waco 1985, no writ); Rocha. 574 S.W.2d at 235 . To answer this question, we
first examine how the distinction between title and boundary disputes arose.
The distinction between formal trespass-to-try-title actions and disputes involving only a
boundary determination was initially drawn as a means to determine whether this Court
had subject matter jurisdiction over the case. Before 1929, we had no jurisdiction over
appeals involving boundary determinations, but did have jurisdiction over appeals that
involved questions of title . Act of Apr. 13, 1892, 22nd Leg., 1st C.S., ch. 15, 1892 Tex.
Gen. Laws 25, amended by Act of Mar. 2, 1929, 41st Leg., R.S., ch . 33 § 1, 1929 Tex.
Gen. Laws 68. fFN11 In determining the parameters of our jurisdiction, we explained
that "[e]very action to try title to land may involve a question of boundary, but ... this
did not of itself make a boundary case." Cox v. Finks. 91 Tex. 318, 43 S.W. 1. 1 (1897).
We concluded that a case was one of boundary if the "whole litigation ... gr[e]w out of a
question of boundary .. .. " Id. at 2. Thus, we initially defined a "boundary case" not for
the purpose of creating a separate cause of action but to respect the Legislature's
statutory constraints on our jurisdiction. These constraints were abolished in 1929, and
the jurisdictional underpinnings of the title/boundary distinction disappeared.
FNl. The judgment of the courts of civil appeals shall be conclusive in all cases on the
facts of the case and a judgment of such courts shall be conclusive on facts and law in
the following cases; nor shall a writ of error be allowed thereto from the supreme court,
to-wit: ... (2) All cases of boundary. Act of Apr. 13, 1892, 22nd Leg., 1st C.S., ch . 15,
1892 Tex . Gen. Laws 25, amended by Act of Mar. 2, 1929, 41st Leg ., R.S., ch. 33 § 1,
1929 Tex . Gen. Laws 68.
The distinction between a title action and a boundary dispute came before the Court in a
different context in Permian Oil Co. v. Smith, 129 Tex. 413. 107 S.W.2d 564 (1937).
There, we were asked to distinguish between title cases and boundary disputes for res
judicata purposes. Permian concerned two suits between different parties involving the
same piece of property. Id. at 566 . The first suit resolved a boundary question . The
parties to the later action claimed that the former boundary suit did not operate as a
muniment of title and thus did not bar their subsequent title suit. I d. We recognized the
longstanding jurisdictional distinction between t itle actions and boundary disputes, but
concluded that this distinction was immaterial for purposes of determining the
substantive res judicata question. Id. at 568 (noting that previous cases "were
undoubtedly influenced by the fact *267 that they were construing the effect of the
[jurisdictional] statute"). Without the jurisdictional limitation guiding our analysis, we
were unwilling to recognize a distinction between statutory trespass-to-try-title actions
and boundary disputes simply because they turned on different evidentiary facts. Id.
That location of a boundary was the sole issue in the first suit, we held, did not mean
that title was not also at issue:
The fact that on the trial boundary was the sole controversy controlling title does not
keep the former judgment, which disposed of title, from binding the parties and their
privies. In trespass to try title determination of the outcome of the suit through the fact
17

of boundary does not alter the cause of action plead [sic] and disposed of by the
judgment.
Id. The same principle was earlier stated in Freeman v. McAninch, where the Court held:
[T]he fact that the determination of [title] may have depended on a question of
boundary could not change the character of the vital issue in the case, for that was but a
question of fact, to be considered like any other fact in determining whether the issue of
title to the land should be decided in favor of the one party or the other... . The issue
presented by the pleadings, and determined by the judgment, was one of title; and that
... this depended on the fact of true locality of the boundary between the surveys, could
not change the character of that issue.
87 Tex. 132, 27 S.W. 97, 98-100 (1894).

i l l ~ Thus,
·

although we have recognized a procedural distinction between trespass-totry-title actions and boundary disputes for jurisdictional and evidentiary purposes, we
have declined to draw a substantive distinction for purposes of determining claim
preclusion. As we said in Freeman, "[q]uestions of boundary are never the subjects of
litigation within themselves, but become so only when some right or title is thought to
depend on their determination .... " Id. at 98 . A boundary determination necessarily
involves the question of title, else the parties would gain nothing by the judgment. Id. at
~(stating that "if the issue of title ... was not determined ... it [would be] wholly
unimportant where the boundary between the surveys was").

w_ fSJ L2.L ~ For the foregoing
·

reasons, we again decline to recognize a substantive
distinction between title and boundary issues, this time for the purpose of allowing
alternative relief under the Declaratory Judgments Act. We conclude, as did the court of
appeals, that the trespass-to-try-title statute governs the parties' substantive claims in
this case. The statute expressly provides that it is "the method for determining title to ...
real property." Tex. Prop.Code 22.001(a) (emphasis added); see Ely v. Brilev, 959
S.W.2d 723. 727 (Tex.App.Austin 1998, no pet.); Kennesaw Life & Accid. Ins. Co. v.
Goss, 694 S.W.2d 115, 118 (Tex.App. Houston [14th Dist.] 1985. writ ref'd n.r.e.) .
Accordingly, the Martins may not proceed alternatively under the Declaratory Judgments
Act to recover their attorney's fees.
The Martins rely on language in Brainard v. State, 12 S.W.3d 6 (Tex.1999), to support
their argument that a declaratory judgment action is a viable method to resolve a
boundary dispute. In Brainard, we were called upon to determine a boundary line as
described by conflicting surveys. Id. at 12. We held that an award of attorneys fees was
not appropriate because the suit arose out of a specific legislative resolution granting
permission to sue the State, and that permission did not provide for a fee award. Id. at
29. We noted, however, that "a [declaratory judgment] is certainly one way to resolve a
*268 boundary dispute .... " Id. This statement, which was clearly dicta, has
understandably generated confusion among our courts of appeals. Compare Goebel, 76
S.W.3d at 655-56 with Amerman, 83 S.W.3d at 863-64. More recently, in a case
involving determination of a shoreline boundary, we properly termed the issue one of
title and rejected the notion that declaratory relief was also available under the
Declaratory Judgments Act:
[T]he dispute in the present case is over title, not an enactment, and the Foundation's
claim for declaratory relief [locating the shoreline boundary] is merely incidental to the
title issues. In such circumstances, the Act does not authorize an award of attorney fees
against the State.
John G. & Marie Stella Kenedy Mem'l Found. v. Dewhurst, 90 S.W .3d 268, 289
(Tex.2002). We disapprove our statement to the contrary, albeit dicta, in Brainard. 12
S.W.3d at 29. To the extent our courts of appeals have expressed a different view, we
disapprove of those decisions. See Goebel, 76 S.W.3d 652: see also Tarrant Countv v.
Denton County, 87 S.W .3d 159 (Tex.App. Fort Worth 2002, pet. denied) {allowing
boundary suits to be tried as declaratory-judgment actions without deciding the issue);

18

-

Mortgage Inv. Co. of El Paso v. Bauer, 493 S.W.2d 339 (Tex.Civ.App.-EI Paso 1973, writ
refd n.r.e.) (same).

III

~

[Q.l
The Amermans, as cross-petitioners, contend that the trial court erred by failing
to submit the case to the jury in the formal manner that traditional trespass-to-try-title
claims require . The court of appeals concluded that the Amermans waived this point, and
we agree. 83 S.W.3d at 861. Moreover, as we have said, the trespass-to-try-title
action's more formal proof requirements do not apply in boundary disputes when there
would have been no case but for the question of boundary. Plumb, 617 S.W.2d at 669 .
The Amermans further contend that the evidence is legally insufficient to support the
jury's determination that the proper boundary line was that set by the Martins surveyor.
We disagree, for the reasons the court of appeals expressed . 83 S.W.3d at 862-63 .

IV
For the foregoing reasons, we affirm the court of appeals' judgment. 83 S. W .3d 858.
Tex.,2004.
Martin

v.

Amerman

133 S.W.3d 262, 47 Tex . Sup . Ct. J. 285

-

-

19

Negotiation and Mediation Reading List 10
Complied by Prof. L. Wayne Scott
Negotiation Skills
FrankL. Acuff, SHAKE HANDS WITH THE DEVIL: HOW TO MASTER LIFE'S NEGOTIATIONS
FROM HELL (2001)
FrankL. Acuff, HOW TO NEGOTIATE WITH ANYONE ANYWHERE AROUND THE WORLD (1997).
Tom Anastasi, PERSONALITY NEGOTIATING ( 1993).
Linda Babcock and Sara Laschever, WOMEN DON'T ASK, NEGOTIATION AND THE GENDER
DIVIDE (2003)
Phyllis Bernard & Bryant Garth, DISPUTE RESOLUTION ETHICS, A COMPREHENSIVE GUIDE
(2002)
Steven J. Brams & Alan D . Taylor, THE WIN-WIN SOLUTION, GUARANTEEING FAIR SHARES TO
EVERYONE (1999).
Jim Camp, STARTING WITH NO: WHY WIN- WIN IS AN INEFFECTIVE, OFTEN DISASTROUS
STRATEGY, AND HOW YOU CAN BEAT IT (2002).
Brian Clegg, INSTANT NEGOTIATION(2000).
Charles B. Craver, EFFECTIVE LEGAL NEGOTIATION AND SEITLEMENT (4th Ed. 2001 ).
Roger Dawson, SECRETS OF POWER NEGOTIATING (1999).
Jay Folberg, Dwight Golan, Thomas J. Stipanowich, and Lisa A. Kloppenberg, RESOLVING
DISPUTES: THEORY AND PRACTICE (201 0).
Roger Fisher and William Ury, GETTING TO YES(2d Ed. Patton, Editor) (1992).
Roger Fisher and Scott Brown, GETTING TOGETHER (1988).
Roger Fisher and Daniel Shapiro, BEYOND REASON: USING EMOTIONS AS You NEGOTIATE
(2005).
James C. Freund, SMART NEGOTIATING (1992).
George T. Fuller, MANAGER'S NEGOTIATING ANSWER BOOK (1995).
Donald G. Gifford, LEGAL NEGOTIATION THEORY AND PRACTICE. (1989).
Victor Gotbaum, NEGOTIATING IN THE REAL WORLD (1999).
Russell H. Granger, THE SEVEN TRIGGERS TO YES: THE NEW SCIENCE BEHIND INFLUENCING
PEOPLE'S DECISIONS (2008). HIGHLY RECOMMENDED.
Harvard Business Essentials, NEGOTIATION(2003).
Phillip J. Herman, BEITER SEITLEMENTS THROUGH LEVERAGE (1965).
Fred E. Jandt, WIN-WINNEGOTIATJNG(l985).
Chester L. Karrass, THE NEGOTIATING GAME (REV. ED. 1992).
Gary Karrass, NEGOTIATE TO CLOSE (HOW TO MAKE MORE SUCCESSFUL DEALS) (1985)
Deborah M. Kolb, Judith Williams, THE SHADOW NEGOTIATION: HOW WOMEN CAN MASTER
THE HIDDEN AGENDAS THAT DETERMINE BARGAINING SUCCESS (2000).
Deborah M. Kolb, Judith Williams, EVERYDAY NEGOTIATION (2003).
Stephen Kozicki, CREATIVE NEGOTIATING ( 1998).
Henry S. Kramer, GAME, SET, MATCH: WINNING THE NEGOTIATIONS GAME (200 1).
Martin E. Latz, GAIN THE EDGE: NEGOTIATING TO GET WHAT You WANT (2004).
Roy J. Lewicki, David M. Saunders, Bruce Barry, ESSENTIALS OF NEGOTIATION (2004).
Blaine Lee, THE POWER PRINCIPLE (INFLUENCE WITH HONOR) (1997).
Len Leritz, NO-FAULT NEGOTIATING (1987).

10

The date given for each book is the date of the book that I have. Later, or revised
editions, of the same book are acceptable.
20

-

-

-

Jay Conrad Levinson, MarkS. A. Smith, Orvel Ray Wilson, GUERRILLA NEGOTIATING (1999)
David J. Lieberman, MAKE PEACE WITH ANYONE, BREAKTHROUGH STRATEGIES TO QUICKLY
END AND CONFLICT, FEUD, OR ESTRANGEMENT (2002).
Deepak Malhotra and Max H. Bazerman, NEGOTIATION GENIUS (2007)
Robert Mnookin, BARGAINING WITH THE DEVIL: WHEN TO NEGOTIATE AND WHEN TO FIGHT

(2010).
'
Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello, BEYOND WINNING:
NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES (2000).Highly
Recommended.
Robert H. Mnookin, Lawrence E. Susskind (Editors), NEGOTIATING ON BEHALF OF OTHERS
(1999).
Melissa L. Nelken, NEGOTIATION: THEORY AND PRACTICE (Second Edition 2008).
Gerald I. Nierenberg, THE ART OF NEGOTIATING(l986 Fireside Ed.). Recommended.
Juliet Nierenberg and Irene S. Ross, WOMEN AND THE ART OF NEGOTIATION(1985).
JohnS. Murray, Alan Scott Rau, Edward F. Sherman, NEGOTIATION(1996). Recommended.
Dean G. Pruitt and Peter J. Carnevale, NEGOTIATION IN SOCIAL CONFLICT(1993).
Howard Raiffa, THEARTANDSCIENCEOF NEGOTIATION( l 982).
Tom Rusk (with D. Patrick Miller), THE POWER OF ETHICAL PERSUASION 1993 ).
Nicholas Reid Schaffzin, NEGOTIATE SMART (1997).
Ronald M. Shapiro, with Gregory Jordan, DARE TO PREPARE: How TO WIN BEFORE YOU BEGIN
(2008).
Ronald M . Shapiro & Mark A. Jankowski, THE POWER OF NICE: HOW TO NEGOTIATE SO
EVERYONE WINS-ESPECIALLY YOU! (1999).
G. Richard Shell, BARGAINING FOR ADVANTAGE (1999). Highly recommended.
Leigh Steinberg (with Michael D'Orso), WINNING WITH INTEGRITY: GETTING WHAT YOU
WANTWITHOUTSELLING YOUR SOUL. (1998). Recommended.
Larry L. Teply, LEGAL NEGOTIATION ( 1992).
Jim Thomas, NEGOTIATE TO WIN: HOW TO GET THE BEST DEAL EVERY TIME - The 21 Rules
for Successful Negotiating (2005).
Leigh Thompson, THE TRUTH A BOUT NEGOTIATIONS (2008)
E. Wendy Trachte-Huber and Stephen K. Huber, MEDIATION AND NEGOTIATION: REACHING IN
LAW AND BUSINESS (1998).
Richard E. Walton and Robert B. McKersie, A BEHAVIORAL THEORY OF LABOR NEGOTIATIONS,
AN ANALYSIS OF A SOCIAL INTERACTION SYSTEM ( 1991 ).
Michael Watkins, SHAPING THE GAME: THE NEW LEADER'S GUIDE TO EFFECTIVE
NEGOTIATION (2006)
Robert A. Wenke, THE ART OF NEGOTIATION FOR LA WYERS ( 1985).
Gerald R. Williams, LEGALNEGOTIATIONANDSETTLEMENT(1983).
William Ury, GETTING PAST No, NEGOTIATING YOUR WAY FROM CONFRONTATION TO
COOPERATION(1993). Highly recommended.
William Ury, THE POWER OF A POSITIVE No: HOW TO SAY NOT AND STILL GET TO YES (2007).
Roger Volkema, LEVERAGE: HOW TO GET IT & KEEP IT IN ANY NEGOTIATION (2006).
Roger J. Volkema, THE NEGOTIATION TOOLKIT(l999).
Peter Wink, NEGOTIATE YOUR WAY TO RICHES: HOW TO CONVINCE OTHERS TO GIVE YOU
WHAT You WHAT YOU WANT(2003) .

International Negotiation
Jeanne M . Brett, NEGOTIATING GLOBALLY: HOW TO NEGOTIATE DEALS, RESOLVE DISPUTES,
AND MAKE DECISIONS ACROSS CULTURAL BOUNDARIES (2007).
21

Roger Fisher, Elizabeth Kopelman, Andrea Kupfer Schneider, BEYONDMACHIAVELLI(1994).
Roger Fisher, Andrea Kupfer Schneider, Elizabeth Borgwardt, and Brian Ganson, COPING WITH
INTERNATIONAL CONFLICT (A SYSTEMATIC APPROACH TO INFLUENCE IN
INTERNATIONAL NEGOTIATION ( 1997).
Roger Fisher, DEAR ISRAELIS, DEAR ARABS (A WORKING APPROACH TO PEACE) ( 1972)
Roger Fisher (Editor), INTERNATIONAL CONFLICTANDBEHAVIORALSCIENCE; THE
CRAIGVILLE PAPERS (1964).
Roger Fisher, INTERNATIONAL CONFLICT FOR BEGINNERS (1969).
Geert Hofstede and Gert Jan Hofstede, CULTURES AND ORGANIZATIONS: SOFTWARE OF THE
MIND (2005).

Geert Hofstede, CULTURE CONSEQUENCES: COMPARING VALUES, BEHAVIORS, INSTITUTIONS,
AND ORGANIZATIONS ACROSS NATIONS (2N ED.) (200 1).
D
Su-Hua Wu, THE CHINESE NEGOTIATOR: HOW TO SUCCEED IN THE WORLD'S LARGEST
MARKET (2007).
Michael Watkins and Susan Rosegrant, BREAKTHROUGH INTERNATRIONAL NEGOTIATION
(2001).

People Skills
Karl Albrecht, SOCIAL INTELLIGENCE, THE NEW SCIENCE OF SUCCESS (2006)
Dan Ariely, PREDICTABLY IRRATIONAL: THE HIDDEN FORCES THAT SHAPE OUR DECISIONS
(2008).
Eric Berne, GAMES PEOPLE PLAY (1963).
Phyllis Bernard and Bryant Garth (Editors), DISPUTE RESOLUTION ETHICS, A COMPREHENSIVE
GUIDE (2002)
Rick Brinkman & Rick Kirschner, DEALING WITH PEOPLE YOU CAN 'T STAND (1994)
Madelyn Burley-Allen, LISTENING, THE FORGOTTEN SKILL ( 1995).
Robert Bolton, PEOPLE SKILLS ( 1979, reprint 1986). (Recommended)
Dale Carnegie, HOW TO WIN FRIENDS AND INFLUENCE PEOPLE ( 1936).
Robert B. Cialdini, I NFLUENCE (2d Ed. 1988).
Thomas K. Cornnellan, BRINGING OUT THE BEST IN OTHERS (2003)
Stephen R. Covey, FIRST THINGS FIRST(1994).
Stephen R . Covey, PRINCIPLE-CENTERED LEADERSHIP (1992) .
Stephen R. Covey, SEVEN HABITS OF HIGHLY EFFECTIVE PEOPLE ( 1989). Highly
recommended .
Roger Dawson, SECRETS OF POWER PERSUASION (1999).
Bert Decker, YOU'VE GOT TO BE BELIEVED TO BE HEARD (1991 ).
Jo-Ellan Dimitrius and Mark Mazzarella, READING PEOPLE: HOW TO UNDERSTAND PEOPLE
AND PREDICT THEIR BEHAVIOR- ANYTIME, ANYPLACE ( 1998).
Julius Fast, BODY LANGUAGE (1970, 2002).
Debra Fine, THE BIG TALK (2008).
Roger Fisher and Scott Brown, GETTING TOGETHER (1988).
Howard Gardner, CHANGING MINDS: THE ART AND SCIENCE OF CHANGING OUR OWN AND
OTHER PEOPLE'S MINDS (2004).
Daniel Gilbert, STUMBLING ON HAPPINESS (HOW THE MIND WORKS) (2006).
Lucy Gill, HOW TO WORK WITH JUST ABOUT ANYBODY: A 3-STEP SOLUTION FOR GETTING
PEOPLE To CHANGE (1999) .•
Lillian Glass, HE SAYS, SHE SAYS (1992).
Daniel Goleman, EMOTIONAL INTELLIGENCE ( 1995).
Daniel Goleman, WORKING WITH EMOTIONALINTELLIGENCE(1998).
22

-

Gary S. Goodman, John Gray, MEN ARE FROM MARS, WOMEN ARE FROM VENUS (1992).
Charles Hampden-Turner & Fons Trompenaars, BUILDING CROSS-CULTURAL COMPETENCE
(2000).
Thomas A. Harris, l'MOK-YOU'REOK(1967).
Ronald A. Howard and Clinton D. Korver, ETHICS {FOR THE REAL WORLD} (2008).
Sam Horn, TONGUE FU! HOW TO DEFLECT, DISARM, AND DEFUSE ANY VERBAL CONFLICT
(1996).
Paul Ekman, TELLING LIES ( 1985).
Gregory Hartley and Maryann Karinch, HOW TO SPOT A LIAR: WHY PEOPLE DON'T TELL THE
TRUTH •• . AND HOW YOU CAN CATCH THEM (2005).
Marco lacoboni, MIRRORING PEOPLE: THE NEW SCIENCE OF HOW WE CONNECT WITH OTHERS
(2008).
George W Kaufman, THE LAWYER'S GUIDE TO BALANCING LIFE & WORK (SECOND EDITION
2006) (EMPHASIZES THE USE OF STORIES).
Neil H. Katz and John W. Lawyer, COMMUNICATION AND CONFLICT RESOLUTION SKILLS
( 1992). Highly Recommended.
David Keirsey, PLEASE UNDERSTAND ME II (1998).
Dacher Keltner, BORN TO BE GOOD: THE SCIENCE OF A MEANINGFUL LIFE (2009).
Tim LaHaye, WHY You ACT THE WAY You Do ( 1984).
Dave Lakhani, PERSUASION: THE ART OF GETTING WHAT YOU WANT(2005).
Dorothy Leeds, THE SEVEN POWERS OF QUESTIONS (2000).
John Lehrer, How WE DECIDE (2009).
Richard H. Lucas and K. Byron McCoy, THE WINNING EDGE, EFFECTIVE COMMUNICATION
AND PERSUASION TECHNIQUES FOR LAWYERS (1993).Highly recommended.
Frank Luntz, WORDS THAT WORK: IT'S NOT WHAT You SAY, IT'S WHAT PEOPLE HEAR (2007).
Abraham H. Maslow (Edited by Deborah C. Stephens), THE MASLOW BUSINESS READER (2000)
Matthew McKay, Martha Davis, Patrick Fanning, HOW To COMMUNICATE: THE ULTIMATE
GUIDE TO IMPROVING YOUR PERSONAL AND PROFESSIONAL RELATIONSHIPS (1983).
Matthew McKay, Martha Davis, Patrick Fanning,MESSAGES, THE COMMUNICATION SKILLS
BOOK(l983).

Colleen McKenna, POWERFUL COMMUNICATION SKILLS: HOW TO COMMUNICATE WITH
CONFIDENCE (1998).
Michael P. Nichols, THE LOST ART OF LISTENING ( 1995).
Deborah Norville, THE POWER OF RESPECT (2009).
Kerry Patterson, Joseph Grenny, Ron McMillian, Al Switzler, CRUCIAL CONVERSATIONS:
TOOLS FOR TALKING WHEN STAKES ARE HIGH (2002)
Steven Reiss, Wlto Am I? (2000).
G. Richard Shell and Mario Moussa, The Art of Woo (2007).
Jeswald W. Salacuse, THE ART OF ADVICE (1994).
Annette Simmons, THE STORY FACTOR: INSPIRATION, INFLUENCE, AND PERSUASION THROUGH
THE ART OF STORYTELLING (200 1). Recommended.
Peter B. Stark and Jane Flaherty, THE ONLY NEGOTIATING GUIDE YOU'LL EVER NEED (2003)
Douglas Stone Bruce Patton Sheila Heen, DIFFICULT CONVERSATIONS: HOW TO DISCUSS WHAT
MATTERSMOST(l999). Highly re,commended.
Deborah Tannen, THE ARGUMENT CULTURE: STOPPING AMERICA'S WAR OF WORDS (1998).
Recommended.
Deborah Tannen, YOU JUST DON'T UNDERSTAND (1990) (Recommended).
Deborah Tannen, WOMENANDMENINCONVERSATION(1990)
Deborah Tannen, TALKING 9 TO 5 (1994). Recommended.
Linda Kaplan Thaler and Robin Koval: THE POWER OF NICE (2006).
23

Linda Kaplan Thaler and Robin Koval: THE POWER OF SMALL: WHY LITTLE THINGS MAKE ALL
THE DIFFERENCE (2009).
George J. Thompson, VERBAL JUDO, THE GENTLE ART OF PERSUASION (1993 ).
Kristin Tillouist, CAPTIALIZING ON KINDNESS (2008).

Conflict Resolution Theory
David A. Anderson (Editor), DISPUTE RESOLUTION: BRIDGING THE SETTLEMENT GAP (1996)
Michael Argyle, COOPERATION(l99l).
Kenneth Arrow, Robert H. Mnookin, Lee Ross, Amos Tversky, and Robert Wilson, BARRIERS
TO CONFLICT RESOLUTION(l995).

Robert Axelrod, THE EVOLUTION OF COOPERATION ( 1984). (Highly recommended).
Steven J. Brams and Alan D . Taylor, FAIR DIVISION FROM CAKE-CUTTING TO DISPUTE
RESOLUTION (1996).
Barbara Benedict Bunker, Jeffrey Z. Rubin & Associates, CONFLICT, COOPERATION & JUSTICE
(1995).
,Kenneth Cloke & Joan Goldsmith RESOLVING PERSONAL AND ORGANIZATIONAL CONFLICT:
STORIES OF TRANSFORMATION AND FORGIVENESS (2000).
Kenneth Cloke and Joan Goldsmith, RESOLVING CONFLICTS AT WORK(2000).
Avinash K. Dixit and Barry J. Nalefuff, THE ART OF STRATEGY: A GAME THEORIST'S GUIDE TO
SUCCESS (2008).
Sybil Evans & Sherry Suib Cohen, HOT BUTTONS (2000).
Roger Fisher and Alan Sharp, GETTING IT DONE: How To LEAD WHEN YOU ARE NOT IN
CHARGE (1998). Highly recommended.
Roger Fisher and William Ury, GETTING TO YES (2d Ed. Patton, Editor) (1992)
Drew Fun den berg and David K. Levin, THE THEORY OF LEARNING IN GAMES ( 1998).
Theodore W . Khell, THE KEYS OF CONFLICT RESOLUTION ( 1999).
Myra Warren Isenhart and Michael Spangle, COLLABORATIVE APPROACHES TO RESOLVING
CONFLICT (2000).
Sy Landau, Barbara Landau, and Daryl Landau, FROM CONFLICT TO CREATIVITY (200 1).
Susan M. Leeson and Bryan M. Johnston, ENDING I T: DISPUTGE REsOLUTION IN AMERICA
(1988, 1997).
Stewart Levine, GETTING TO RESOLUTION (1998). Recommended
Pamela Meyer, QUANTUM CREATIVITY ( 1997).
James Miller, GAME THEORY AT WORK -HOW TO USE GAME THEORY TO OUTTHINK AND
OUTMANEUVER YOUR COMPETITION (2003).
Brian Muldoon, THE HEART OF CONFLICT (1996).
Douglas Noll, PEACE MAKING: PRACTICING AT THE INTERSECTION OF LAW AND HUMAN
CONFLICT(2003).

Dean G. Pruitt and Peter J. Carnevale, NEGOTIATION IN SOCIAL CONFLICT (1993).
Dean G. Pruitt and Jeffrey Z . Rubin, SOCIAL CONFLICT, ESCALATION, STALEMA TE, AND
SETTLEMENT ( 1986).
Tom Rusk, M.D., THE POWER OF ETHICAL PERSUASION (1993).
Thomas C. Schelling, THESTRATEGYOFCONFLICT(l960).
Frederic Schick, MAKING CHOICES: A RECASTING OF DECISION THEORY ( 1997).
G ini Graham Scott, RESOLVING CONFLICT (1990).
G. Richard Shell, BARGAINING FOR ADVANTAGE (1999).
Lawrence Susskind, Lawrence Bacow, and Michael Wheeler, RESOLVING ENVIRONMENTAL
DISPUTES (1983).
Lawrence Susskind, Jeffrey Cruikshank, BREAKING THE IMPASSE, CONSENSUAL APPROACHES
24

TO RESOLVING PUBLIC DISPUTES (1987).
William Ury, GETTING TO PEACE (1999). Highly Recommended.
William Ury, THE THIRD SIDE: WHY WE FIGHT AND HOW WE CAN STOP(2000).
Richard E. Walton and Robert B. McKersie, A BEHAVIORAL THEORY OF LABOR NEGOTIATIONS,
AN ANALYSIS OF A SOCIAL INTERACTION SYSTEM ( 1991 ).
Dudley Weeks, THE EIGHT STEPS TO CONFLICT RESOLUT/Oft/(1992).
William W. Wilmot and Joyce L. Hocker, INTERPERSONAL CONFLICT(2001).

Mediation Skills
David A. Anderson, DISPUTE RESOLUTION: BRIDGING THE SETTLEMENT GAP. ( 1996).
Jacob Bercovitch and Jeffrey Z. Rubin, MEDIATION IN INTERNATIONAL RELATIONS (1992).
Robert A. Baruch Bush and Joseph P. Folger, THE PROMISE OF MEDIATION: RESPONDING TO
CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994).
Ken Cloke, 'Mediation - REVENGE AND THE MAGIC OF FORGIVENESS.
Eric Galton, Mediation, A TEXAS PRACTICE GUIDE (1993).
Dwight Golann and Jay Folberg, MEDIATION(2006).
Freya Ottem Hanson and Terje C. Hausken, MEDIATION FOR TROUBLED MARRIAGES ( 1989).
Deborah M. Kolb and Associates, WHEN TALK WORKS, PROFILES OF MEDIATORS.
JohnS. Murray, Alan Scott Rau and Edward F. Sherman, MEDIATION AND OTHER NONBINDING ADR PROCESSES ( 1996).
Bennett G . Picker: MEDIATION PRACTICE GUIDE: A HANDBOOK FOR RESOLVING BUSINESS
DISPUTES (2003).
Dr. Beverly Potter, FROM CONFLICT TO COOPERATION; HOW TO MEDIATE A DISPUTE (1994 ).
Karl A . Slaikeu, WHEN PUSH COMES TO SHOVE (1996).
Lawrence Susskind and Jeffrey Cruikshank, BREAKING THE IMPASSE (1987).
E. Wendy Trachte-Huber and Stephen K. Huber, MEDIATION AND NEGOTIATION: REACHING IN
LAW AND BUSINESS (2001). [Counts as two books.]
Conflict Resolution Systems
William L. Ury, Jeanne M. Brett, and Stephen B. Goldberg, GETTING DISPUTES RESOLVED
(1988).
Henry S. Kramer, ALTERNATIVE DISPUTE RESOLUTION IN THE WORK PLACE ( 1998).
Miscellaneous

-

-

Arthur lsak Applebaum, ETHICS FOR ADVERSARIES, THE MORALITY OF ROLES IN PUBLIC AND
PROFESSIONAL LIFE (1999).
Tony Alesandra, CHARISMA (1998).
Tom L. Beauchamp and Norman E. Bowie, ETHICAL THEORYANDBUSJNESS(4th ed. 1993).
Sissela Bok, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE (1978, 1988, 1998).
Brad Blanton, PRACTICING RADICAL HONESTY(2000).
Ginny Pearson Barnes, SUCCESSFUL NEGOTIATION (1998).
Susan Bixler and Lisa Scherrer Dugan, 5 STEPS TO PROFESSIONAL PRESENCE (200 1).
John R. Boatright, ETHICS AND THE CONDUCT OF BUSINESS ( 1997).
Adam M . Brandenburger and Barry J. Nalebuff, CO-OPETITON(1996).
Donald G Brennan, ARMS CONTROL, DISARMAMENT, AND NATIONAL SECURITY (1961).
John Chaffee, THE THINKER 'S WAY(1998).
25

Gary Chapman and Jennifer Thomas: THE FIVE LANGUAGES OF APOLOGY: HOW TO
EXPERIENCE HEALING IN ALL RELATIONSHIPS (2006).
Dr. Henry Cloud, Integrity: THE COURAGE TO MEET THE DEMANDS OF REALITY (2006)
Jay Conger, WINNING 'EM OVER, A NEW MODEL FOR MANAGEMENT IN THE AGE OF

-

PERSUASION(1998).

Stephen M. R. Covey, with Rebecca R. Merrill, THE SPEED OF TRUST: THE ONE THING THAT
CHANGES EVERYTHING (2006).
Morton D. Davis, GAME THEORY (A NONTECHNICAL INTRODUCTION) ( 1983).
Rupert Eales-White, ASK THE RIGHT QUESTION: HOW TO GET WHAT You WANT EVERY TIME
AND IN ANY SITUATION (1998).
Peter Fleming, SUCCESSFUL NEGOTIATING ( 1997).
Drew Fundenberg and David K. Levine, THE THEORY OF LEARNING IN GAMES (1998).
Les Giblin, HOW TO HAVE CONFIDENCE & POWER IN DEALING WITH PEOPLE (1956, 1984).
Adrian Gostick and Dana Telford, THE INTEGRITY ADVANTAGE (2003)
Robert Greene, POWER (1998, 2000).
Joy Haney, HOW TO FORGIVE WHEN IT'S HARD TO FORGET (1996).
Marc D. Hauser, MORAL MINDS: THE NATURE OF RIGHT AND WRONG (2007).
Aaron Hass, DOING THE RIGHT THING (CULTIVATING YOUR MORAL INTELLIGENCE) (1998).
Andrew Hill, with John Wooden, BE QUICK-BUT DON'T HURRY(2001).
Russell Hoban (Pictures by Lillian Hoban), A BARGAIN FOR FRANCES (1970)
Dale Hunter, with Stephen Thorpe, Ham is Brown, Anne Bailey, THE ART OF FACILITATION
(1994, 2007)
Dale Hunter, Anne Bailey, and Bill Taylor, THE ZEN OF GROUPS (1995).
William Isaacs, DIALOGUE, AND THE ART OF THINKING TOGETHER ( 1999).
Joseph Jaworski, SYNCHRONICITY, THE INNER PATH OF LEADERSHIP ( 1996).
Theodore W. Khell, THE KEYS TO CONFLICT RESOLUTION (200 1).
Otto Kroeger with Janet M. Thuesen, TYPE TALK AT WORK(1992).
Harold S. Kushner, LIVING A LIFE THAT MATTERS (200 1).
Paul R. Lawrence and Nitin Nohria, DRIVEN (HOW HUMAN NATURE SHAPES OUR CHOICES)
(2002).
Gus Lee with Diane Elliott-Lee, Courage: THE BACKBONE OF LEADERSHIP (2006).
Lynne C. Levesoque, BREAKTHROUGH CREATIVITY (200 1).
David J. Lieberman, GET ANYONE To Do ANYTHING: NEVER FEEL POWERLESS AGAIN (2000).
Jim Loehr, THE POWER OF STORY: REWRITE YOUR DESTINY IN BUSINESS AND LIFE (2007).
Max Lucado, CURE FOR THE COMMON LIFE: LIVING IN YOUR SWEET SPOT(2005).
Dick Lyles, WINNING WAYS (2000).
John C. Maxwell, BE A PEOPLE PERSON: EFFECTIVE LEADERSHIP THROUGH EFFECTIVE
RELATIONSHIPS (2007).
John C. Maxwell and Jim Doman, BECOMING A PERSON OF INFLUENCE (1997).
Lynne McTaggart, THE INTENTION EXPERIMENT (2007).
John G. Miller, THE QUESTION BEHIND THE QUESTION(2004).
John G. Miller, FLIPPING THE SWITCH: UNLEASH THE POWER OF PERSONAL ACCOUNTABILITY
USING THE QBT (2006).
Brian D. Molitor, THE POWER OF AGREEMENT ( 1999)
Sylvia Nasar, A BEAUTIFUL MIND ( 1998)
Bruce Pandolfmi, EVERY MOVE MUST HAVE A PURPOSE, STRATEGIES FROM CHESS FOR
BUSINESS AND LIFE (2003).
Joshua Cooper Ramo, THE AGE OF THE UNTHINKABLE (2009).
Ken Robinson, with Lou Aronica, THE ELEMENTS: HOW FINDING YOUR PASSION CHANGES
EVERYTHING (2009).
26

-

Mark Sanborn, THE FRED FACTOR (2004).
Tim Sanders, SAVING THE WORLDATWORK(2008).
Simon Schrock, WHERE HAS INTEGRITY GONE? (REVISED EDITION 2007).
Pauline H. Tesler, COLLABORATIVE LAW: ACHIEVING EFFECTIVE RESOLUTIONIN DIVORCE
WITHOUT LITIGATION(2001).

-

-

Jim Underwood, MORE THAN A PINK CADILLAC, MARY KAY INC.'S 9 LEADERSHIP KEYS TO
SUCCESS (2003)
Hendrie Weisinger, THE POWER OF POSITIVE CRJTICISM(2000).
Redford Williams and Virginia Williams, ANGER KILLS (1998).
Mike Vance and Diane Deacon, THINK OUT OF THE BOX (1995)
Roger von Oech, A WHACK ON THE SIDE OF THE HEAD (HOW YOU CAN BE CREA TIVE)(J 998).
Roger von Oech, EXPECT THE UNEXPECTED (OR You WON'T FIND IT) (200 1).
Rosamund Stone Zander & Benjamin Zander, THE ART OF POSSIBILITY (2000).

27

The Ethics of Conflict
Hints for the Peaceful Resolution of Disputes
Prof. L. Wayne Scott
Director of Conflict Resolution Studies
St. M ary's University School of Law

Introduction
• Don't be frightened by the title!
• This is not going to be a sermon on ethics,
but a series of suggestions for the
combination of a number of simple skills to
allow for the successful negotiation of any
problem, whether simple or complex.

Definitions
• Some definitions:
- . " Ethical," as used in the context of negotiation,
refers to "Being in accordance with the accepted
principles of right and wrong that govern the
conduct of a profession." To "negotiate" is "to
confer with another or others in order to come to
terms or reach an agreement ....to arrange or
settle by discussion and mutual agreement. ... "

Definitions
• To negotiate ethically, then, is to conduct a
principl ed negotiation. This can be contrasted
with "positional bargaining." To "bargain" is
to negotiate the terms of an agreement, as to
sell or exchange." "Position", as used here,
means "A point of view or attitude on a
certain question ... ."To bargain from a
position is then, to bargain from one's own
point of view or attitude.

-

Think Win/Win
• Those advocating principled or ethical
negotiation ask the simple question: Do you
always benefit the most by always attempting
to win?
• The principled negotiator aims for a win/win
situation.

Persuasion v. Cooperation
• Most writings on negotiation emphasize the
importance of persuasion. Principled,
cooperative, or ethical negotiation, however,
does not address persuasion, in the sense of
one person convi ncing another of the
correction of his/her point of view. Rather the
emphasis is on persuading people to treat
each other " ...with greater respect,
understanding, caring, and fairness.

Alternative to Cooperation
• The alternative to an ethical approach- as it
was and, often, is:
- Naming; Blaming; Claiming.
-Stating and restating positions until an agreement
is reached - or not.
- Don't worry about the other side - protect
yourself.
-The goal is to win as much as possible! Win/lose
is preferred.

An Example
• AN EXAMPLE to work from:
• The fence line dispute.
• How Many Ways Are There To Resolve A
Dispute Or Reach An Agreement?

• A. The Litigation Scenario.
• B. The Principled Negotiation Alternative.

A Simple Negotiation Formula
• A better way can be found by studying the entire
concept of negotiations from the beginning.
• At the beginning, consider the following formula :
- Prepare - The key to success I
- Discuss- Listen -The overlooked skill.
- Propose-Anchor.
- Bargain- ulf, then .. ."
-Think in terms of value to the other side.

A. Negotiation.

-

-The basic purpose of negotiation is to reach an
agreement, which will avoid or settle a conflict.
-This goal cannot be accomplished without
recognizing that to reach an agreement, all parties
to the negotiation must agree to the resulting
agreement.

B.

All Interests Must Be Satisfied.

• One cannot reach an agreement without
satisfying the interests of all others to the
agreement.
• Mistreatment, belittlement, chastisement, or
embarrassment ofthe opponent will not,
usually, aid in reaching a negotiated
settlement.

C.

Be Proactive. ·

• Negotiators must realize that the only person
that they can control is themselves.

-

-

-

• They must learn to be proactive and not
reactive.

D. Begin with the End in Mind.

-

• Have a negotiation plan in mind, and stick to
it, unless new informatio n requires an
adjustment.

-

E.

Think Win-Win.

• 1. Win/Win
• 2. Win/Lose

• 3. Lose/Win • 4. Lose/Lose
• 5. Win

• 6. Win/Win or No Deal

F. Prepare Your Side and Theirs
- The negotiator must con :solder









Interests
Options
Alternatives
Standards
Relationships,
Communications
Commitment

G. Prepare Your Side and Theirs
• Additionally, the negotiator must prio ritize
the interest and options for themselves and
for all other parties, in case "horse trading" is
required.

Styles of Negotiation.
• A. The Value Claimer,
-also know as the competitive bargainer,
-the distributive bargainer,
-or the adversarial bargainer

• seeks to gain the most possible for
himself/herself, at the expense of others
involved in he negotiation ..

Styles of Negotiation.

-

• B. The Cooperative Bargainer,
-also known as the problem-solving or
- ethical bargainer,

• attempts to meet the needs of both parties,
and loo ks for ways to expand the bargaining
zone.

-

Styles of Negotiation.
The Cooperative Bargainer:
1.
Cooperative bargaining is most
beneficial in commercial, family, and general
negotiations,
particularly
where
the
establishment o r continuation of on-going
relations is important.
·
2.
Dangerous when used blindly
with a value claimer.

Styles of Negotiation.
• c. The Cautious Cooperative Negotiator
is a cooperative bargainer, fully trained
as a value claimer, but recognizes that
cooperation is a better way to negotiate.

Styles of Negotiation.
• The Cautious Cooperative Negotiator:
• Once a surplus has been created, the cautious
cooperative negotiator will :
1. use standards of legitimacy to distribute the
surplus. This is the ideal or ethical method employed
to continue or establish relationships.
2. use value claiming tactics to claim a larger
share of the surplus created through cooperation.
These are frequently known as very good " horse
traders."

Styles of Negotiation.

-

• D. Understanding the Contentiousness
Negotiation.
- Self-Perception. We have a population of t it-fortat negotiators. Each cooperates until the other
side defects and then retaliates.
- Echoes. (When a single defection can set off a
long string of recriminations and counterrecriminations, both sides suffer.")
-Noise. Negotiation is "noisy."

Negotiation Goals.
A. Establishing the Possibility of a
Settlement.
• 1. The exchange of information.
• 2. Creating an atmosphere for negotiation

Negotiation Goals.
B. Seek to satisfy your interests well,
and the interests of the other party
adequately.

-

Negotiation Strategies.
• 1. Don't Assume That Because "They'' Win,
"You Lose."
a.
A distributive bargaining situation
may be an exception.
b.
Integrative bargaining. There are
usually ways to structure solutions that
benefit all negotiators.

Negotiation Strategies.
• 2. Don't commit to anything until
complete agreement has been reached.

a

• Use a "single-text" approach to negotiation.

Negotiation Strategies.
3. Look for Essential Differences.
-a.

Understand- Emphasize.

Search for interests. Ask "what" and
- b.
"why" questions. If those don't work, ask "why
not" questions. Then ask questions that cause the
other party to prioritize their interests with
questions such as "what if' "where" or "when."

Negotiation Strategies.
• 3. Look for essential differences:
- c.

Differences in risk preference.

- d.

Differences in time preferences.

-e.

Differences in capabilities can be
combined.

-f.
Reveal your own interests and
preferences.
-g.

Take advantage ofthe reciprocity norm.

Negotiation Goals.
Avoid Adverse Selection. The problem of
adverse selection stems from the fact that
sellers usually have more information about
the quality of their wares than do potential
buyers. Solution: add an issue that will have
great value to the buyer, because it limits the
buyer's adverse selection risk, but will have a
minimal cost to the seller, because the
warranty will not likely be invoked.

Negotiation Goals.
Moral Hazard. The problem of moral
hazard arises when the seller's actions, after
an agreement has been reached, can affect
the value of the subject of the negotiation.
The solution: structure an agreement that
makes compensation dependent upon
performance.
Don't assume you are finished when you
have an agreement.

Negotiation Techniques -People Skills
• A. Fundamental techniques in handling
people.
• 1

Don't criticize, condemn or complain.

• 2. Give honest, sincere appreciation.
• 3 . Talk about what they want and show
them how to get it. Build a "golden bridge."

V.

Negotiation Techniques -People Skills

• B. Six Ways To Make People like You
- 1.

- 2.

Smile.

- 3.

V.

Become genuinely interested in other
people.
Remember the other person's name.

Negotiation Techniques - People Skills

4. Be a good listener. Seek First to

Understand, Then to be Understood.
5 Talk in terms of the other person's

interests.
6. Make the other person feel importantand do it sincerely.

-

V.

Negotiation Techniques -People Skills
C.

How To Win People To Your Way oflhinking

-

Avoid Arguments.
1.

Show respect for the other person's
opinions. Never say, "You•re wrong."

2.

If you are wrong, admit it quickly and
emphatically.

3.

Begin in a friendly way.

V.

Negotiation Techniques -People Skills
4.

Get the other person saying "yes,
yes" immediately.

5.

let the other person feel that the
idea is his or hers.

6.

Try honestly to see things from the

other person's point of view.
7.

V.

"Be sympathetic with the other
person's ideas and desires."

Negotiation Techniques -People Skills

• 8. Appeal to the nobler motives.
• 9. Dramatize your ideas.
• 10. Throw down a challenge.

-

-

Attempt to Make Mutually Beneficial
Agreements .
• Use standards and "what is right" as the basis of
reaching an agreement.
Establishing Your Opening Offer.
- 1.

Who should make the opening offer?

• a.

The advantages of you making the opening offer.
1) Settlncthe tone.
2) Goals v. 8ottom Unes and ReservatiOf\ Prices.

3) BATNA/WATNA.
4) Standards.
5) Anchoring.

Calculating Your RP
CALCULATlN G RESERVATION PRICES: A PRESCRIPTIVE APPROACH.

1. Alternatives,
2. Preferences
3. Probabilities of Future Events.
4. Risk Preference.
5. Transaction Costs.
6. Value of Time.
7. Effect on Future Opportunities.

Attempt to Make Mutually Beneficial
Agreements.

• 1. Who should make the opening offer?
- b. The risk of making the opening offer.
1)
2).
3)
4)
5.

Lack of information.
Danger of over-informing the opponent.
The self-serving bias.
Reactive devaluation.
Spite.

Negotiation Techniques- Strategies.
• A. THE COMPETITIVE PHASE
- 1 . "Principled" Offers and Concessions.

- 2. Argument.

- 3. Threats and Promises.
- 4 . Negative Threats.

- 5. Affirmative Promises.
- 6. Silence and Patience.

Negotiation Techniques- Strategies.
• A. THE COMPETITIVE PHASE

7.

Anger.

8.

Aggressive Behavior.

9.

Uproar.

- 10.

Settlement Brochures and Video
Presentations.

Negotiation Techn iques - Strategies.
• A. THE COMPETITIVE PHASE

-

-

• 11. Avoid Boulwarism. F. F. F. F. 0 .
- a . First, it Is paternalistic.
- b. Second, it denies the parties the opportunity to
participate.
- c. Third, it denies the opponent the opportunity to feel
that they have had any input.
- d . Fourth, It may give the opponent an expectation of
greater gain.
- e. Evaluate such a proposal on its merits. See if it
satisfies your interests.

Negotiation Techniques- Strategies.
• A. THE COMPETITIVE PHASE
- 12.

Salami.

- 13.
-14.

Mutt and Jeff.

- 15.

Belly-Up.

- 16.

Passive-Aggressive Behavior.

-

Br'er Rabbit.

- 17.

"Logrolling."

-

-

Negotiation Techniques- Strategies .
• B. Power Negotiation.
1. Never Say "Yes" to the First Offer.
2. Flinch.
3. Avoid Confrontation.
-

4 . Play the Reluctant Buyer or Seller.

Negotiation Techniques- Strategies.
• B. Power Negotiation.
5.

Don' t Worry about Price.

6.

Don't Split the Difference.

7.

Set It Aside.

8.

The Art of Concession.

Negotiation Techniques - Strategies.
B.

Power Negotiati on.
11. The Most Dangerous Moment. When you think you
have an agreement, watch out for the " nibble technique."
12. Your Most Powerful Weapons. "Learn to develop walkaway power."
a.

Preparation.

b.

Cooperation:

Negotiation Ethics.
• A. Questions Concerning the Ethical Floor for
the Conduct of Responsible Negotiator.
-What acts or omissions amount to fraud and are
therefore illegal?

Negotiation Ethics.
• B. Questions a Conscientious Negotiator Will
Also Ask
- 1. Even if my behavior is above this floor, is the
conduct worth the risk, in light of my reputation
and other pragmatic interests?

-

- 2. Is this conduct consistent with my own moral
aspirations?

Negotiation Ethics.
• C. The Disclosure Continuum
-Full, open truthful disclosure of all information.
-Nondisclosure of material information.
-Nondisclosure when the other side has
erroneous assumptions
- Misleading statements about material issues.
- Intentional false statements about material facts
or law.

Negotiation Ethics.
D. Hypothetical Question: You have a car that runs, but is
beginning to burn a quart of oil every five hundred miles. You
have not had the engine checked, and d o not know the cost
of repairing any problem that might exist. You want to sell
the car.
• 1. What should you, or must you, disclose to a prospective
buyer?
Voluntarily Disclose the Oil Problem to the Buyer?
• What if you say nothing?
• What if you say nothing and the buyer says: "Gee, the car
runs great and doesn't seem to have any problems at all. I'm
looking for somethi ng that's trouble-fre e."

Negotiation Ethics.
2.

Can you say any of the following?

• "I love this car."
• "It's been a great car. Except for ordinary
maintenance, I have never had to spend a
dollar on repairs. These Toyotas are really built
to last, and this car has only 95,000 miles."
"Is there
• 3. What If the buyer asks:
anything wrong with this car?" Can you reply:
"Nope. Absolutely nothing wrong. Runs like a
charm. And there are no signs of trouble.

Negotiation Ethics.
• Nondisclosure when the other side has
erroneous assumptions
• Misleading statements about material issues.
• Intentional false statements about material
facts or law.

Negotiation Ethics For Attorneys .

2. Lying (4.01(a)]
Lying is not allowed about material facts.
What is a material fact?
Is an opinion a material fact?
Is a lie about an alterative a material fact?
There are two exceptions about non-material
statements recognized by the comments to 4.01:
- Estimates of price or value placed on the subject of a
transaction.
- A party's intentions as to an acceptable settlement of a
claim.

Negotiation Ethics For Attorneys.
• 3. Nondisclosure [4.01(b)]:
- 1.

-2.

Fiduciary Duty

-3.

Partial Disclosure

-4.

-

Buyer Beware

Fraud law

-5.

Duty to Withdraw.

Negotiation Ethics For Attorneys.
4.

Rule 1.02 SCOPE AND OBJECTlVES Of REPRESENTATION

(a)

Subject to pil<agraphs (b), (c), (d), and (e), (fl. and(&), a lawyer shall

abide by a dlent' s dedsions:

(2) whether to accept an offer of settlement of a matter, except as
otherw ise authorized by law;

Negotiation Ethics For Attorneys.
• 5. Rule 1.03. Communication
- (a)
A lawyer shall keep a cl ient reasonably
informed about the status of a matter and
promptly comply with reasonable requests for
information.
- (b)
A lawyer shall explain a matter to the
extent reasonably necessary to permit the client
to make informed decisions regarding the
representation.

Negotiation Ethics For Attorneys.
• 6. Misrepresentation
- a.
Restatement (Second of Torts) (19n):
a.
§525. Uability for Fraudulent
Misrepresentati on:
One who fraudulently makes a misrepresentation of fact,
opinion, intention or law for the purpose of inducing another
to act or to refrain from action in reliance upon it, is subject
to liability to the other In deceit for pecuniary loss caused to
him by his justifoable reliance upon the misrepresentation.

Negotiation Ethics For Attorneys.
Restatement (Second) of Contracts
{1981):
b. § 164. When A Misrepresentation
Makes A Contract Voidable:
1. If a party's manifestation of
assent is induced by either a fraudulent or a
material misrepresentation by the other party
upon which the recipi ent is justified in relying,
the contract is voidable by the recipient ....

Negotiation Ethics For Attorneys.
7.

HOW MUCH DO I HAVE TO TELL MY CliENT?
a.

Must I communicate an offer?
Written - Definitely
- Oral .. Do it!

b. Must I communicate strategy or tactics?
No Questions - Maybe not.
- Questions- Definitely.

Negotiation Ethics For Attorneys.

-

-

• Misrepresentation
-1.
Restatement (Second ofTorts) (1977):
a.
§525. liability for Fraudulent
Misrepresentation:
One who fraudulently makes a
misrepresentation of fact, opinion, intention or
law for the purpose of inducing another to act
or to refrain from action in reliance upon it, is
subject to liability to the other in deceit for
pecuniary loss caused to him by his justifiable
reliance upon the misrepresentation.

Negotiation Ethics for Attorneys
Restatement (Second) of Contracts
(1981):
b. § 164. When A Misrepresentation
Makes A Contract Voidable:
1. If a party's manifestation of
assent is induced by either a fraudulent
or a material misrepresentation by the
other party upon which the recipient is
justified in relying, the contract is
voidable by the recipient ....

Negotiation Ethics For Attorneys.
• Restatement (Second) of Agency (1958):
An agent who fraudulently
makes representations, uses duress, or
knowingly assists in the commission of
tortious fraud or duress by his principal or by
others is subject to liability in tort to the
injured person although the fraud or duress
occurs in a transaction on behalf of the
principal.

Negotiation Ethics For Attorneys.
ABA, Model Rules of Professional Conduct
(2001):
• 1. Rule 4.1 -Truthfulness in Statements to
Others

• In the course of representing a client a lawyer
shall not knowingly:
• (a) make a false statement of material fact or
law to a third person ....

-

Negotiation Ethics For Attorneys.


Comment

Mfsrepres~tation

There is no affirmative duty to Inform an opposing party of relevant facts.

There Is a misrepresentation if the lawyer Incorporates or affi rms a
st·aternent of another pe rson that the litwyer knows Is false.
Misrepresentations can a lso occur by failure t o act.

• Statement of Fads
Estimates of price or value p laced on the .subject of a tr.~nsa ction end ll
party'.s intentions as t o an a cceptable settlement of a cl aim are ord lm•ril'y

not taken as state ment of material fact.

The existence of an undisclosed principle ls not ordinarily taken as a
statement of material fact, except where nondisclosure of the principal
would constitut e fraud.

Negotiation Ethics For Att orneys.
When Nondisclosure Constitutes
Misrepresentotion.
a.
Concealment. Nondisclosure is
treated as misrepresentation when the nondisclosing
party actively conceals a material fact from a
negotiating opponent or tells a pa rtial truth that
implies a fcllsehood.
b.
Silence. When a negotiator is
merely silent as to the existence of a material fact
that, if know, wou ld weaken his/her bargain ing
position, however, there is no bright-line rule that
can reliably divide actionable from non actionable
nondisclosure.

-

-

Negotiation Ethics For Attorneys.
• Disclosure. Disclosure of material facts is
required when the negotiator has a fiduciarytype relationship of trust with the opponent, or
when disclosure is necessary to prevent a
previous statement from being false (for
example, when a lawyer acqu ires new
information inconsistent with a previous
assertion) and also in the apparently broad set
of circumstances in which standards of fa ir
dealing require disclosure.

Negotiation Ethics For Attorneys.
Unilateral Mistake. Under contract law, a
contract can be rescinded if one party is
mistaken as to a basic assumption that has a
material effect on the transaction, if the other
party knows of the mistake and the first party
does not ear the risk of such a mistake. A
party is considered to bear the risk of a
mistake if he agrees to bear the risk or if he
enters the agreement knowing that his
knowledge is incomplete or uncertain.

Glossary of Terms

•Glossary

Preparation
• Preparation.
a. Internal Preparation. look for interests/ needs,
options, and alternative (includi ng BATNA) of the negotiator.
b. External Preparation. look for interests/needs,
options, and alternative (including BATNA) of the other
negotiator.
c. Synthesis. Look for common ground, and strategize.
Remember that the interests/needs of the other party must
be satisfied, before an agreement can be reached.

-

-

Strategic Barriers
Strategic Barriers.
Information asymmetry·the possession by each negotiator
of some information that the other does not have. This
allows the p[arties to bluff and lie about their interests and
preferences.
Strategic behavior aimed at maximizing the size of the
party's own "slice" of the "pie.• These are claiming tactics,
and may result in claiming tactics by the other side, thus
pushing up the cost of the agreement.

Cognitive Barriers
Cognitive Barriers.
Risk Aversion: Most people will take a sure thing over a
gamble, even where the gamble may have a somewhat
higher "expected" payoff. The proportion of people who
will gamble to avoid a loss is much greater than those who
would gamble to realize a gain.
Loss aversion: In order to avoid what would otherwise be a
sure loss, many people will gamble, even if the expected loss
from the gamble is larger.

Reservation Price and Zones

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Reservation point/price: In any negotiation, the maximum
amount that a buyer will pay (or the seller will take) for a
good, service, or other legal entitlement Is called his/her
" reservation point" or, ifthe deal being negotiated is a
monetary transaction, his "reservation price" (RP).
Bargain ina zone. If the buyer's RP is higher than the seller's
RP, the distance between the two points is called the
"bargaining zone." (An agreement for an amount within the
zone is superior to no agreement.) It is sometimes referred
to as the ZOPA (Zone of Possible Agreement).

Power of Aspirations
• ASPIRATIONS: Individuals usually obtain

better bargaining outcomes if they begin an
endeavor with a specific, concrete aspiration
rather than a more ambiguous "do your
best" aspiration.
• How Should Negotiators Determine Their
Aspirations? One approach is to set the
aspiration level at the estimate of the
opponent's reservation point

Self-Serving Bias
• Self-Serving Bias: Evidence of the "selfserving bias" (or egocentric bias) suggests
that, on average, decision makers will make
optimistic predictions about the likelihood of
future events. In other words, people tend
make judgments skewed in favor of thei r own
self-interest.

Anchoring
• Anchoring. Negotiators are often unduly
influenced by the initial figure they encounter
when estimating the value of an item.
Opening offers anchor t he expectations and
willingness of the other negotiator(s)
expectations and willingness to accept a final
settlement offer. Additionally, the opening
offer serves to frame the negotiation.

Reactive Devaluation
• Reactive Devaluation. A negotiated
agreement may be of less value to a
negotiator than it would otherwise be merely
because his opponent proposed it.

Loss Aversion
• Prospect Theory And Reference Point Effects.
• Loss aversion: In order to avoid what would

otherwise be a sure loss, many people will gamble,
even if the expected loss from the gamble is larger.
Both sides may fight on in a dispute in the hope
that they may avoid any losses, even though the
continuation of the dispute involves a gamble in
which the loss may end up being far greater.

Economic & Prospect Theories

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Economic theory predicts that rational
negotiators will be risk adverse.
Prospect theory predicts that in the usual case
decision makers will exhibit risk seeking tendencies
when choosing between certain and probabilistic
losses-they will prefer a probabilistic loss to a
certain loss when the two have the same expected
value.

Framing Effect
The framing effect: This prediction of prospect theorythat individuals will prefer certain alternatives to risky ones in
the realm of gains, but will prefer risky alternatives to certain
ones i n the realm of losses-is often know as the "framing"
effect.
The framing effect implies that when a negotiated
agreement would lead to a certain outcome, but the
negotiator's BATNA will lead to a probabilistic outcome (or
vice versa), the negotiator's reservation price will depend on
whether he/she views the alternatives as "gains" or as
"losses."

Framing- Another Version
• Framing (another way of looking at it): How
we ask a question may effect the answer to
the question : E.g. "May I smoke while I
pray?" vs. "May I pray while I smoke?"

Status Quo Bias
• Status Quo Bias: All other things equal,

individuals on average tend to prefer an
option if it is consistent with the status quo
than if it requires a change from the status
quo.
• Selective perception: Thoreau: "We see only
the world we look for."

Bias/Consensus Error
• Confirmation bias: We give credit to
information that agrees with our already
formed beliefs and desires.
• Consensus error: We tend to think that
others think as we do, and have the same
values that we have.

Na'ive Realism
• Nai"ve realism: We see the word in the way it
really is , and anyone seeing it differently is
na·ive.

Log Rolling

-

• "Logrolling" is a term often used to describe
the practice of two or more legislators
trading votes on bills that are of little
importance to them in return for votes on
bills that are very important to them.
[Example: Public transportation bill and farm
subsidy bill.] Conceptually, logrolling is just a
slightly different perspective on the strategy
of adding and subtracting issues.

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Adverse Selection
Adverse Selection. The problem of adverse selection stems
from the fact that sellers usually have more information
about the quality of their wares than do potential buyers. If
the goods are high-quality, value can be crated by the seller
insuring the quality of the goods in some way, often by
providing a warranty. This expand$ the bargaining ~one by
adding an issue that typically will have great value to the
buyer, because it limits the buyer's adverse selection risk,
but will usually have only a minimal cost to the seller,
because he/she knows the goods are high quality and the
warranty will not likely be invoked.

Moral Hazard
• Moral Hazard. The problem of moral hazard
arises when the seller's actions after an
agreement has been reached can affect the
value of the subject ofthe negotiation. The
solution is to structure an agreement that
compensation is dependent upon
performance.

Reciprocity Norm
The Reciprocity Norm: Why doesn't a buyer usually begin

negotiations by stating his best offer or the seller the lowest
demand? Social convention demands reciprocity. If one
person gives something of value to another, we usually
expect that the recipient will reciprocate in some way.
When people demonstrate reciprocity, they satisfy social
convention.
- OJrollory Rul~- The effect of concessjons. Another consequence of
the rule is an obli1ation to make a concession to someone who has
made a concession to us.

Reciprocity Norm Explained
• How the reciprocation rule works: The
reciprocation rule brings about mutual concession
in two ways:
1. It pressures the recipient of an already-made
concession to respond in kind.
2. Because of a re cipient's obligation to
reciprocate, people are freed to make the initial
concession and, thereby, to begin the beneficial
process of exchange.

Boulwarism
Boulwarism: The concept of a fi rst, firm, fair,

final offer made by the offer, who then
refuses to negotiate further. This is the
negotiation tactic of refusing to revisit an
initial offer. While it may work in consumer
transactions, if reciprocity is expected, it can
prevent a successful negotiation.

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The Disclosure Continuum
Full, open
truthful
disclosure
of all
informatio
n.

Nondisclosu
re of
material
information


Nondisclosu
rewhen the
other side
has
erroneous
assumptions

Misleadi
ng
statemen
ts about
material
.
Issues.

Intention
al false
statemen
ts about
material
facts or
law.

Files

Collection

Citation

L. Wayne Scott, “CLE: 2010: Negotiating The Ethical Way,” St. Mary's Law Digital Repository, accessed June 25, 2017, http://lawspace.stmarytx.edu/item/STMU_HomecomingCLE2010Scott.

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