It’s a familiar practice in negotiation role-plays and training:

Students are divided up and assigned to engage in negotiation role-plays known as simulations. Each person reads confidential information about her role, the two (or more) players get together and negotiate, and then the class reconvenes to debrief the experiences.

Negotiation role-plays took root as a common method for teaching negotiation because they allow students to practice their skills in a low-risk setting and requires them to confront common negotiation problems directly, among other benefits.

In the January 2013 issue of Negotiation Journal, George Mason University professor Daniel Druckman and Creighton University Law School professor Noam Ebner discussed the benefits and drawbacks of simulations as a learning tool. Reviewing social science research, they found that engaging in negotiation role-plays improves students’ motivation and retention of key concepts that have already been taught in lectures and classroom discussions. Thus, classes that combine simulations with more traditional classroom methods may maximize learning.

In addition, other learning methods could supplement or expand upon negotiation role-plays, Druckman and Ebner suggest. To take one example, students could be assigned to engage in real-world negotiations and then discuss their experiences back in the classroom.

In a 2012 article for the Negotiation newsletter, professor Alisher Faizullaev, director of the Negotiation Laboratory at the University of World Economy and Diplomacy in Tashkent, Uzbekistan, explains that his students learn broad lessons about negotiation when he assigns them to bargain in the fabled bazaars of Tashkent, Uzbekistan.

“An Eastern bazaar is a perfect place to practice negotiation strategies,” writes Faizullaev. “Here bargaining is not only possible but also essential, and good bargainers are respected by even the most unyielding sellers.”

One assignment Faizullaev gives his students is simply to try to establish a good relationship with the seller and not to bargain for anything at all. “Show an interest in her personality, listen to what she says, try to create an emotional bond, and express yourself sincerely,” he instructs. If a seller offers to sell some of her wares, the student can decide whether to haggle.

The students often leave this exercise feeling pleasantly surprised. Sellers tend to give numerous products to the students for free or for very cheap—all unsolicited.

The strategy is effective, writes Faizullaev, simply because “people value genuine human relationships, and some negotiators, especially in an Eastern bazaar, may be willing to give up certain material goods in exchange for a connection with others. …. [T]he main lesson that students derive from their experience in the bazaar is an appreciation of the importance of establishing meaningful bonds that go beyond business.”

In addition to being assigned to negotiate in the field, students could become involved in the design of negotiation role-plays. In their own classroom experiments, Druckman and Ebner found that negotiation students who were involved in designing a simulation retained concepts better and received more satisfaction from the process than did those who simply role-played the student-designed simulation.

Have you learned anything from negotiation role-plays? Share your experiences in the comments below.

Related Article: The Deal Is Done – Now What?

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Adapted from “Make the Most of Your Negotiation Training,” first published in the Negotiation newsletter, November 2013, and “Bargaining Lessons from the Bazaar” by Alisher Faizullaev, first published in the Negotiation newsletter, February 2012.

Originally published in 2013.

As you may have noticed, the first offer made in a negotiation often has a significant influence on the final outcome. In their research, psychologists Daniel Kahneman and Amos Tversky documented that the first number introduced in a negotiation serves as an “anchor” that can be impossible to ignore—no matter how irrelevant, outrageous, or insulting it may be. Due to the anchoring effect, or anchoring bias, making the first offer is one of the most effective negotiation techniques a person can follow.

But it’s not enough to aim high and expect your opening offer to pay off. You also need to carefully consider how precise that offer should be, recent research studies suggest.

The Precision Advantage

Research on price anchoring has found that more precise numerical first offers are more effective than offers that are less precise—those that have been rounded off. For example, a house with a more precise list price of $255,500 is likely to attract higher bids than houses with rounded-off list prices of $256,000 or $255,000.

Why are precise first offers more effective than offers with rounded-off numbers, and how can we further capitalize on their benefits?

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In one experiment, Leuphana University of Lüneberg professor David D. Loschelder and his colleagues had pairs of participants play the roles of seller and buyer in a negotiation simulation involving the sale of a chemical plant. One member of each pair was instructed to make the first offer (sometimes the buyer, sometimes the seller). In addition, those making first offers were encouraged to make either a rounded offer (such as €5 million or €36 million), a moderately precise offer (such as €5,818,600 or €36,181,300), or a highly precise offer (such as €5,818,614.76 or €36,181,385.24).

Like past research, the results showed that more ambitious first offers led to more favorable outcomes for the party who made the first offer. However, those making a highly precise first offer were less ambitious than those whose offers were less precise.

Interestingly, however, those who made the most precise first offers got better deals. Why? First, because offer recipients made less ambitious counteroffers in response to more precise offers; they did so because they judged those who made more precise offers to be more knowledgeable about the value of the commodity. Second, those who made precise first offers made smaller subsequent concessions than those who made rounded first offers as the price haggling continued.

Why did those who aimed for precision make less-ambitious first offers than those who made rounded offers? Because they correctly predicted that they would need to make fewer concessions to meet their goal—that is, they anticipated the anchoring effect of their precise offer.

 The study’s results offer advice for professional negotiators. First, strive to make a precise numerical offer, but make sure it’s just as ambitious as it would be if it were rounded-off. An ambitious, precise offer should lead to the best results. Second, if the other party opens with a rounded offer, capitalize on the benefits of precision by responding with a precise counteroffer. Third, beware the tendency to be strongly anchored by precise offers and to assume that precision conveys knowledge, which may not be the case.

When the Precision Advantage Falls Short

Does the precision advantage hold up when a first offer is presented before two parties begin to negotiate? Take the case of someone comparing the prices of homes or used cars on online listing sites.

In their research, Columbia Business School researcher Alice J. Lee found that very precise offers risk scaring away potential negotiators by conveying inflexibility. In one negotiation simulation, for example, online participants playing the role of a landlord perceived participants in the role of renter to be less flexible when they made a precise rent offer for an apartment (such as $2,117.53 per month) versus a rounded offer (such as $2,100 per month). The landlords tended to prefer to negotiate with those who made rounded offers.

The researchers also gathered data from the real estate service Redfin and found that the more precise a property’s listing price was, the more likely the seller was to have relisted the property at a lower price due to lack of interest from buyers.

In short, the results suggest the following effective negotiation techniques: First, before you start negotiating, craft a rounded first offer, which may attract more bidders than a very precise one. Second, once the negotiation is in progress, increase the precision of your offers to get a better deal.

What other effective negotiation techniques do you recommend regarding first offers?

Do experts on negotiation practice what they preach? To find out, we spoke with Harvard Law School and Harvard Business School professor Guhan Subramanian. The former academic editor of Negotiation Briefings, Subramanian was named the chair of the Program on Negotiation (PON) atHarvard Law School in 2018. He leads PON’s executive committee, a group of 11 negotiation faculty,in setting the program’s initiatives and direction. We asked him to describe the committee’s negotiations and whether they conform to negotiation best practices.

Negotiation Briefings: Before you became chair of PON, you were a member of the executive committee, which regularly engages in internal negotiations. Now you’re the leader of that committee. As you’ve changed roles, how have the committee’s negotiations changed for you?

Guhan Subramanian: The PON chair has always been first among equals. And, not surprisingly, given the nature of PON, we’ve tried to negotiate among ourselves as opposed to following any kind of mandate from the boss. Continuing a culture established by Robert Mnookin, PON’s longtime chair, I try to lead the group in reaching consensus rather than resorting to a majority-vote rule.

The nature of PON makes it a place where trying to reach decisions through negotiation is a natural thing to do. And the reality is that all the executive committee members are senior faculty members, so there are no real carrots or sticks I could offer in the way that a typical manager would. All I can do is appeal to the substantive arguments as to why one course of action would be better than another. We all realize that and try to work together to reach good outcomes for PON and for the field of negotiation overall.

NB: Do you ever experience a conflict between what you believe would be in the best interest of the group versus what would be in your best interest personally?

GS: Not really. It’s the responsibility of the executive committee to make sure that we always put PON first, and there are rarely such conflicts of interest. In the few scenarios where there are, we try to use processes that accommodate for those conflicts, such as asking someone to step out if we’re discussing a program they are responsible for within PON.

NB: Professors are smart people who often have strong opinions. When disagreements become unproductive, what strategies do you use to address conflict?

GS: As the new chair, I’ve naturally wanted to make some changes to how things have been done. Obviously, some of them will lead to debate. I try to make sure that everyone feels listened to and that the final decision is one that accommodates all points of view.

I often think of a quote from former president Barack Obama, which I’ll paraphrase: I want to hear their point of view, and then I provide my point of view, and then I want to try to find the truth that lies between people. In my experience being on faculty, being involved in negotiations, and now heading PON, I’ve learned that no single person has the truth; the truth lies between people. Therefore, to try to insist on your point of view or approach probably won’t lead to a good outcome in the end. So, I try to listen to dissenters and address their concerns.

NB: The executive committee is made up of negotiation experts. Do you rely on the same strategies that you teach to others?

GS: We do. I credit Bob Mnookin for instilling a culture in which every member has a voice. For example, as the leader, I try to make sure that everyone has a chance to weigh in on a particular topic, and I ask those who are experts in the area we’re discussing to contribute. Consistent with negotiation best practices, I also try to hear from potential dissenters. I myself sometimes play devil’s advocate if I feel like the counterarguments haven’t been fully conveyed among the group members. I’ll say, “What if this downside scenario happens?” and try to hear all the arguments against a decision.

One of the main insights to come out of PON over the past 30 to 40 years is that managers are negotiators. In the old days, organizations used to be more hierarchical, and leaders could just tell people what to do. In today’s era of flatter, matrixed organizations, you have to negotiate with your colleagues. Everyone has the same interest of advancing the organization’s collective goals, but we all have different views on how to get there. It’s fun to apply the tools we teach in class to running PON. We have the great gift of a wonderful staff, which makes the job a lot easier.

What is your greatest source of power in negotiation? You may have learned— perhaps in this newsletter or in Roger Fisher, William Ury, and Bruce Patton’s landmark negotiation book Getting to Yes: Negotiating Agreement Without Giving In (Penguin, 1991)—that it is often a strong BATNA, or best alternative to a negotiated agreement. Experienced negotiators scan the environment before and during a highly anticipated negotiation to determine their backup plan and try to improve it: Job hunters follow other job leads, buyers talk to suppliers’ competitors, and so on.

Your BATNA can be both a useful measure of the quality of a proposal you’re considering and a source of power. When you compare a potential deal to your BATNA, you have a better sense of whether to accept it or push for more. But while BATNA analysis is important, even critical, an overly narrow focus on our BATNA can lead us to make major mistakes in negotiation and leave significant value on the table, according to two recent articles.

In our June issue, we described why negotiators have difficulty assessing uncertain BATNAs accurately and how they can do better. In this article, we stress the value of looking beyond your BATNA to make the most of your interdependence with your current negotiating partner.

Don’t assume you have to walk away

Because the BATNA concept is often defined as an “outside option,” independent of one’s current negotiation, it can be difficult to apply to negotiations conducted between people involved in established partnerships, writes Harvard Business School professor James Sebenius in the April 2017 issue of Negotiation Journal.

“Think of a reasonably content married couple or successful business partners negotiating an issue of keen mutual interest on which they have different preferences,” writes Sebenius. If that married couple can’t agree on where to live after retirement, the only obvious “outside option” would be separation or divorce—hardly an appealing BATNA if they are “reasonably content.” Similarly, when partners in a successful business can’t see eye to eye on a critical issue, they are unlikely to view the dissolution of their partnership as an acceptable BATNA.

When partners in a successful business can’t see eye to eye on a critical issue, they are unlikely to view the dissolution of their partnership as an acceptable BATNA.

Rather than thinking of our BATNA as an “outside option,” Sebenius advises us to think of it more broadly as a “no-deal option.” When we frame our BATNA in this way, exercising our BATNA doesn’t require us to walk away from our current negotiating partner if we’re unsatisfied with their proposal; it just requires us to keep saying no.

Specifically, Sebenius recommends that we consider the full consequences of saying no to the other side and how we might try to influence those consequences to our advantage. Such consequences might include “costs or risks borne by each side, foregone benefits, altered settlement possibilities, damage to the relationship,” and so on, he writes.

Reject—and add pressure

To see this strategy in action, consider the dilemma that some frustrated employees at Amazon’s warehouses in the Minneapolis area faced in recent years. Many of the workers are refugees from East Africa, primarily Somalia, who have struggled to meet increasingly challenging quotas for packing boxes for delivery to customers—as high as 400 boxes an hour, one worker told Vox.

Some Muslim employees said they were given breaks to pray but feared they would fall behind and be fired if they took them. Others complained that none of the managers spoke Somali and didn’t get them medical attention when they suffered health crises at work.

With the help of the Awood Center, a local nonprofit that assists East Africans, some of the employees banded together to protest for better working conditions, reports Karen Weise in the New York Times. Managers met with the employees and agreed to certain changes, such as requiring a Somali-speaking manager to weigh in on any proposed productivity-related firings and to assign a manager to respond to individual workers’ complaints within five days. Many of the workers viewed these concessions as insufficient and have continued to stage walkouts to push for greater representation and a less punishing workload.

Amazon is known for setting rigorous performance quotas for its warehouse employees and quashing their efforts to organize for better working conditions. “Nobody would assume a Muslim worker, with limited language skills, in the middle of Minnesota can be a leader in a viable fight against one of the biggest employers in the world and bring them to the table,” Awood executive director Abdirahman Muse told the Times.

So why have the Amazon employees made headway, and why do they continue to push for change? After all, as new immigrants facing language and other barriers, they risk being fired from well- paying jobs with good benefits and could have difficulty finding similar employment.

The employees implicitly looked beyond their individual BATNAs to Amazon’s BATNA—and how they might worsen it by banding together. The workers and Amazon disagree about what percentage of the workforce is East African—the workers say 60%; Amazon says 30%— but, either way, it’s a significant number. “Amazon would have a very difficult time replacing that many workers,” University of Illinois at Chicago employment researcher Beth Gutelius, told the Times. By protesting together, the workers made it difficult for Amazon to fire them and motivated the retailer to offer concessions.

The behavior of the Amazon workers in this story suggests what can happen when parties with seemingly weak BATNAs look for sources of power within their negotiation rather than assuming the situation is hopeless and giving up. In ongoing, mutually beneficial relationships, look at your BATNA as a no-deal option rather than an outside option. Continue to say no while looking for ways to create value and put pressure on the other party. Such pressure tactics can include enhancing your power by joining forces with other weak parties, allowing the costs of nonagreement to mount for your partner, or revoking benefits the other party receives from your relationship.

Assess your mutual dependence

In a 2017 Harvard Business Review article titled “The Most Overused Negotiating Tactic Is Threatening to Walk Away,” McGill University lecturer Jay A. Hewlin argues that a focus on BATNAs can lead negotiators to give up on a promising deal and exercise their BATNA before thoroughly exploring opportunities for value creation.

Hewlin argues that BATNAs “are a defense against an inferior agreement” but “are not designed to facilitate relationship building, exploration, creativity, or collaboration.” In fact, when you have a strong BATNA, as compared to a weaker one, you may feel less motivated to collaborate, innovate, and use your leverage because you feel comfortable walking away.

To ensure that we work on both creating and claiming value, regardless of the strength of our BATNA, we need to ascertain why and to what degree our counterpart needs what we’re offering. According to Hewlin, focusing on mutual dependence advances the conversation from “How much can I get out of this deal above my BATNA?” to “In how many ways can I demonstrate my value to my counterpart based on their needs?”

Hewlin tells the story of a co-owner of a relatively new sustainability company who pitched his company’s services to a local school district. The co-owner faced strong competition from established companies, but he won a contract by asking questions that identified how his company was uniquely positioned to serve the district’s needs and by designing a multitiered plan that deepened the district’s need for his services. In this case, the business owner’s relatively weak BATNA was rendered irrelevant thanks to his ability to create value for his counterpart.

Increase your counterpart’s dependence to claim value

Awareness of your interdependence with another party can foster value creation. It can also prompt you to claim value— that is, to get more of the pie you’ve expanded for yourself.

Here’s a case in point. At his February State of the Union address, U.S. president Donald Trump unveiled an ambitious plan to eradicate the human immunodeficiency virus (HIV) nationwide by 2030. As part of that plan, the White House negotiated with pharmaceutical company Gilead Sciences to donate enough of its drug Truvada, the only drug approved to prevent HIV infection, to supply 200,000 patients annually for up to 11 years, the Times reports.

HIV activists and experts told the Times that the deal between the White House and Truvada was a good start but noted that it addressed only one-fifth of the demand for the drug in the United States. Currently, only about 18% of at-risk Americans who need Truvada have access to it, according to the Kaiser Family Health Foundation. Gilead has long been criticized for pricing Truvada out of reach for most patients: a month’s supply, which costs about $6 to make, sells for more than $1,600. Gilead has kept affordable generic versions of the drug off the market through legal action and side deals with potential competitors, according to the Times.

In an op-ed, the Times’s Editorial Board argued that Trump had squandered significant leverage in the negotiation with Gilead. Truvada’s development was largely funded with taxpayer dollars, and the Centers for Disease Control and Prevention holds a patent on the medication. Trump’s Justice Department is currently investigating whether Gilead owes the U.S. government back royalties on that patent, which could add up to $1 billion. Currently, there are no plans to sue. By issuing a credible threat to sue for those royalties, the White House may have been able to secure the drug for thousands of additional Americans.

As this negotiation shows, focusing on mutual dependence doesn’t just mean collaborating to meet each other’s needs. It can also mean looking for ways to deepen the other side’s dependence on you, perhaps by worsening her BATNA. In this case, the Trump administration might have done so by threatening legal action.

BATNAs and beyond

The following advice from Sebenius and Hewlin will help you take a broader view of BATNA analysis and reach better agreements:

• View your BATNA as a no-deal option rather than an outside alternative. Productive relationships can be irreplaceable, so don’t assume you have to threaten to walk away from one to get what you want. As you continue to reject the offer on the table, look for ways to put pressure on the other party to compromise.
• Work to enhance the deal on the table. Negotiators who believe they have little power often leave the bargaining table empty-handed. Those with strong BATNAs, meanwhile, sometimes walk away from a deal too quickly. In both cases, negotiators pass up opportunities to create value. Avoid this common mistake by probing your counterpart’s interests and exploring how you might meet them. The more value you can create, the more willing both parties will be to leave their BATNAs behind.
• Increase your counterpart’s dependence on you. In addition to determining your own BATNA, you need to research your counterpart’s likely BATNA. Then explore ways you might put pressure on him to do a deal by deepening his dependence on you.

Industry rivals need to strike a balance between maximizing profits through competition and cooperating on ways to strengthen their market. Become overly competitive, and they risk fostering conflict and constricting innovation. Collaborate in the wrong ways, and they could end up cutting ethical corners or even breaking the law.

When an industry is struggling, this balance can be especially difficult to maintain. As reported by Jonah Engel Bromwich in the New York Times, the new CEO of Sun-Maid, the leading U.S. raisin producer, has learned this lesson firsthand.

Stealing the pie

When Harry Overly took the helm of Sun-Maid in 2017 from an industry insider, the $500 million U.S. raisin industry had been in decline for years amid growing competition from other snack foods and foreign raisin producers. A 38-year-old raisin-industry newcomer, Overly arrived in California’s Central Valley eager to explore ways to convince millennials to eat more of the sweet and healthy snack.

But when he met for the first time with other raisin industry leaders to discuss how they might work together to increase sales, Overly told the Times, the ideas they came up with were “completely illegal” and “nothing short of collusion.”

It soon became clear to Overly that California’s compact community of raisin farmers, packers, and executives was ridden with distrust due to disputes that went back decades. The California Dancing Raisins, Claymation characters used to promote U.S. raisins in the late 1980s and early 1990s, had been a wildly popular sales booster. But after the head of Sun-Maid restricted his competitors’ use of the characters on their packaging, the campaign fell apart, and raisin sellers had resisted collaborating on advertising ever since. Industry fault lines grew deeper in 2015 after a Supreme Court decision prompted the end of a long-standing system in which raisin farmers shared the risk of low raisin supply in off years.

California’s compact community of raisin farmers, packers, and executives was ridden with distrust due to disputes that went back decades.

“What I figured out fast was that this was not an industry which was interested in figuring out how you grow the size of the pie,” Overly told the Times. “It is one where they figure out how to just steal different slices of the pie from each other.”

Heard it through the grapevine

As is common for other U.S. agricultural crops, raisin growers are allowed to collectively set industry prices, within a certain range. To try to preserve their profits, they generally have responded to shrinking consumer demand for raisins by raising prices.

But to boost sales, Overly believed, Sun-Maid would need to lower the baseline price for raisins. In late 2018, he launched negotiations with Kalem Barserian, the head of the Raisin Bargaining Association (RBA), which represents raisin farmers and raisin producers. The supply of raisins had rebounded from 2017’s heat-damaged crop, and Barserian, a 50-year veteran of the raisin industry, wanted to raise the base price of raisins to a record high. Overly objected. “I don’t know [in] what world … supply goes up and price is supposed to go along with it!” he said to the Times.

In California’s insular raisin community, “the gossip was that Sun-Maid’s new chief executive didn’t want to pay a fair price to farmers,” writes Bromwich. With negotiations at an impasse, Overly pulled Sun-Maid out of the RBA in October. He claims he was then the subject of intimidation, harassing phone calls, and even several death threats.

Raisin’ heck

With industry tensions at an all-time high, Overly and Barserian followed through on a commitment to appear together on a panel at Fresno’s Grape, Nut & Tree Fruit Expo in November. Addressing the crowd of raisin growers, Barserian warned about growing global competition and falling demand for U.S. raisins.

When it was his turn, Overly talked about the need to raise raisin prices sustainably. He then appealed to the audience: “We need to spend more time focusing on growing the pie than fighting over our piece of [the] pie within this industry. This fighting needs to stop.”

The forum opened up to audience questions. Jim Phillips, a grower who sells raisins to a Sun-Maid competitor, agreed with Overly that the industry needed to stand together. “Kalem, you don’t have a plan,” he said to Barserian.

Other growers stood up to offer their support for Overly’s collaborative vision. American Vineyard magazine reported that raisin growers left the meeting “with their blood pumping fast in excitement for the industry to finally get together and trigger some much-needed changes.”

Growers agreed to lower the baseline price for raisins, and tensions began to ease. In April, a delegation of raisin-industry leaders took a lobbying trip to Washington, D.C. Many federal officials expressed surprise at the display of unity within the raisin industry, according to Overly, who now has more time and energy to focus on new-product development and marketing.

Raisins in the sun

Here are three lessons from the raisin industry’s breakthrough:

• Reframe the game. Rather than looking at negotiations with competitors as a scramble to grab scarce resources, try to reframe them as opportunities for parties to grow the value of the pie through collaborative moves so that everyone can claim more.
• Bypass unhelpful agents when needed. When Overly couldn’t reach agreement with Barserian, he made his case directly to the farmers the RBA represents. If you believe your counterparts’ representative is not serving them well, try going around him or her.
• Address conflict head-on. Unresolved disputes can fester and taint interactions between parties for years, even decades. Whether through negotiation, mediation, or some other forum, allow parties to air and get to the root of their grievances.

The television industry has undergone seismic changes in recent decades, first with cable TV joining broadcast TV, followed by the rise of digital streaming companies such as Netflix, Amazon Prime, and Hulu. In today’s “peak TV” era, companies are producing hundreds of shows to fill viewers’ binge-watching appetites.

In some ways, it’s a golden age for TV writers, as more opportunities to create and work on scripted series are available than ever before. But because of changes the writers’ talent agencies have made to their business model, writers’ wages are stagnating at a time when they should be on an upward trajectory, according to the Writers Guild of America (WGA), the union that represents TV writers. In April, following unproductive negotiations with the Association of Talent Agents (ATA), the agencies’ trade group, the WGA told its members to fire their agents, at least until writer-friendly improvements are made to the system. The WGA also filed a lawsuit against the four leading talent agencies—William Morris Endeavor (WME), Creative Artists Agency (CAA), United Talent Agency (UTA), and ICM Partners—alleging unlawful conflicts of interest.

At one point or another, most of us have hired an agent to negotiate on our behalf. When we feel out of our depth or stuck behind closed doors, an agent—whether a real-estate agent, lawyer, literary agent, or financial adviser—can provide the knowledge, experience, connections, and negotiating skills needed to get us a great deal.

Our agents can become such trusted partners that we tend to forget their financial interests are almost never perfectly aligned with our own. A busy real-estate agent may advise you to offer more for a house than is necessary in the hopes of wrapping up a quick sale and earning his commission. A lawyer who bills by the hour may have incentives to research a cut-and-dried case more thoroughly than is necessary.

In the worst cases, our agent may have a full-blown conflict of interest that could lead her to sacrifice our goals for her own. By the time we realize we’ve been harmed by this goal mismatch, we may have suffered unrecoverable losses. The ongoing dispute between TV writers and their agents shows what can happen when we fail to examine our agents’ financial motives closely, while also illustrating best—and worst—conflict-resolution practices.

A new model

Traditionally, Hollywood agents representing writers have taken a minimum 10% cut of the deals they negotiate. That business model began to shift in the early 2000s when the major talent agencies concluded that to grow their business, they would need to move from relying on agency commissions toward ownership of the content they help produce, Chris Bevilacqua, who led CAA’s sports media ventures in 2007 and 2009, told the New York Times.

To do so, the top agencies began accepting cash infusions from private- equity firms in exchange for partial ownership. After investing $500 million in CAA, private-equity firm TPG Capital now holds a majority stake in the agency. Private-equity firm Silver Lake has a $200 million stake in WME, which in May revealed plans to go public.

As Hollywood agencies have begun to mutate into “full-fledged media conglomerates,” Vanity Fair reports, they are increasingly being pushed by their new partners “to diversify in search of new revenue sources.” Most notably, the large agencies have switched in recent years from the labor-intensive practice of negotiating deals for individual clients to bundling clients into package deals.

In a typical package deal, an agency offers a studio the key elements of a TV series from its stable of talent, including a showrunner, a pilot script, and perhaps a star or director, according to the Hollywood Reporter. Rather than paying agencies indirectly through client commissions, studios pay packaging fees to agencies up front, as well as up to 10% of a show’s future profits. Because agencies can earn many millions of dollars on a successful show, packaging can be far more profitable to them overall than the commission model. Agencies have packaged deals for decades, but only recently did it become the dominant negotiating model. According to the Writers Guild, 87% of scripted TV series in 2016 and 2017 were packaged.

Ulterior motives

The rise of packaging may be a boon to agencies, but it has created an untenable conflict of interest in their relationship with clients, according to the WGA. Because agencies are being compensated based on the predicted value and success of a show rather than on how much their client will earn from the show, they may be motivated to keep labor costs low to boost a show’s long-term profits. The agencies counter that their writers are earning more from packaging because their agents waive their commissions. But the WGA claims that weekly earnings for TV writers fell by 23% between 2014 and 2016, along with pay per episode. Using different calculations, the agencies dispute these claims, saying that writer pay is actually rising.

The WGA also objects to the fact that the three largest agencies (WME, CAA, and UTA) are using private- equity money to create their own content-production divisions. The agencies argue that their representation and production divisions are run separately and that agents have a strong motivation to retain their clients by getting them great deals. The WGA maintains that agencies’ activities all flow into the same pot and that writers get subpar deals when they are essentially hired by their agents.

The more beholden the agencies become to outside interests, the more pressure they will face to cut costs, writes Gavin Polone in the Hollywood Reporter. “Reducing compensation for employees is the surest way to boost the bottom line of any business,” he says. As writers’ representatives, agents are perfectly positioned to suppress writers’ wages, whether they would choose to do so consciously or not.

A brief negotiation

Throughout the seismic changes to the television industry, the relationship between TV writers and their agents has been governed by an agreement negotiated in 1976. In surveys and at outreach meetings, writers complained to the WGA that the agreement was well overdue for an overhaul.

The WGA put the ATA on notice that their franchise agreement would be expiring on April 6. In February and March, the two sides held a series of meetings that both sides characterized as unproductive. The ATA accused the WGA of engaging in bad-faith bargaining after WGA executive director David Young openly promised the guild’s negotiating strategy would include threats and attacks. In a video address, David Goodman, head of the WGA West, told members that the guild would accept nothing less than total capitulation from the agencies on packaging: “There is no meaningful compromise where conflict of interest is concerned.”

The WGA drafted a Code of Conduct that would require any agencies representing its writers to discontinue packaging and in-house production, a plan supported by 95.3% of members, according to the Reporter. When the 10 largest talent agencies refused to sign the code, the WGA ordered its members to formally drop their agents until they do.

Then, on April 17, the guild sued the four major Hollywood talent agencies. According to the suit, packaging fees violate California law, which requires agents to act in the best financial interest of their clients and inform them of possible conflicts of interest, the Times writes.

Three days later, the WGA delivered termination letters to agents from more than 7,000 writers, including Patton Oswalt, Shonda Rhimes, and Stephen King. Goodman told the Times that the union had the “overwhelming support” of its members—about 80% of those with agents sent termination letters—and that the writers were prepared for a long fight.

What happens next? Having taken on their agents, TV writers are likely to seek greater revenue sharing from studios, writes Jonathan Handel in the Reporter. With the WGA’s contract with the studios set to expire in mid-2020, the guild may press studios to shift the packaging fees they’re not currently paying agents directly to the writers, regardless of how the WGA’s lawsuit against the agencies unfolds. The fight could get ugly: The WGA has held numerous strikes in the past, including a 100-day strike in 2007 that debilitated the industry.

Lessons from a disruptive dispute

TV writers’ dissatisfaction with their agents’ negotiating practices grew gradually over time, but the parties appear to have devoted little effort to collaborating on solutions. The following guidelines can help you manage potential and existing agent conflicts of interest more constructively:

• Research your agents’ incentives. When interviewing potential agents, don’t accept their financial conditions at face value. Take time on your own to think about the conflicts of interest an agent may face when representing you. Compare the agent’s proposed compensation terms to industry standards.
• Negotiate to reduce conflicts of interest. If you’ve identified a potential conflict of interest, openly discuss any concerns you may have with prospective agents and explore alternative compensation models. Remember that agents, like the rest of us, are often unaware of their biases. Emphasize the need to agree to terms that will reduce or eliminate potential trouble spots and promote a productive long- term relationship.
• Question new business models. The WGA tolerated talent agencies’ packaging practices for decades before arguing that they were unlawful. Scrutinize counterparts’ new ways of doing business from the start, and renegotiate your contract at regular intervals.
• Open with collaboration. It’s tempting to launch negotiations and dispute resolution with threats and tough demands, especially if you believe you’re the weaker party. But a combative tone will invite reciprocation and short-circuit good- faith bargaining. When you stake out all-or-nothing positions up front, you cut yourself off from opportunities to create value through tradeoffs. Meet privately, and ensure you’ve explored all avenues for collaboration before resorting to expensive legal action and other disruptive moves.
• Bring in unbiased experts when disputes arise. In the TV writers’ dispute, members from each side presented conflicting data to support their claims. Parties to a dispute will get nowhere fast when they argue about who’s right. Instead, mutually agree to hire a neutral third party to examine the data and reach an independent analysis—and promise in advance that you will abide by the expert’s conclusions.

Imagine that you’re about to engage in an international negotiation with someone from a different culture. How would you go about it? In all likelihood, you would focus on managing cultural differences by studying the other party’s culture, customs, and tendencies. You might try to answer questions such as, Should I bow upon meeting my counterpart? Should I bring a gift? Should we meet over dinner and get to know each other, or get right down to business? What is considered rude in their culture, that is acceptable in mine?

It’s important to educate yourself about your counterpart’s culture so that you don’t risk offending her or seeming unprepared. At the same time, it would be a mistake to focus too narrowly when preparing for cross-cultural communication in business. Research on international negotiation can help us think more broadly when it comes to managing cultural differences.

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Putting Too Much Stock in Stereotypes

One common risk of studying up on a counterpart’s culture is that it can lead us to expect that person to behave like a walking, talking stereotype. For example, relying on stereotypes gleaned from international negotiation how-to books, you might expect your German counterpart to be exceedingly rigid and punctual. Or you might expect a Mexican negotiator to communicate expressively and devote a lot of time to rapport-building.

Such stereotypes may or may not turn out to apply to any given individual. Moreover, our culture is just one contributor to our identity and behavior. Our profession, personal history, ingrained personality, and experiences also define who we are and how we negotiate. Yet we tend to focus on an unfamiliar counterpart’s culture because it is often her or his most obvious feature. International conflict and misunderstanding can be the inevitable result, and you want to make sure you are able to manage cultural differences if you ever want to get anywhere in negotiations.

Culture and Confusion

In fact, negotiators tend to over-rely on stereotypes when managing cultural differences in international negotiation, to their detriment, University of Waterloo professor Wendi L. Adair and her colleagues have found. In a study of American and Japanese negotiators, the researchers found that study participants typically adjusted their negotiating style too far toward the other party’s culture. That is, they expected their counterpart to negotiate as they imagine he would at home, not anticipating that he would likely try to adjust to the foreign context as well. Ironically, this mutual adjustment led to cultural clashes when negotiators were trying to share information and persuade one another.

To take an example, suppose that a Brazilian and a German are about to negotiate. From her research, the Brazilian may expect that the German will want to immediately get down to business. Meanwhile, from his research, the German may think that the Brazilian will want to spend some time building rapport. If the Brazilian tries to hurry the talks along to meet what she perceives to be the German’s expectations, the German may feel rebuffed and disappointed. 

Moving Beyond Stereotypes to Managing Cultural Differences

Here are three guidelines for managing cultural differences and reducing cultural barriers to negotiation:

1. Research the whole person. In addition to learning about a negotiating partner’s culture, try to get to know him as an individual. Where has he worked? What are his skills? What is his reputation like as a negotiator? You might answer such questions by consulting his LinkedIn profile, speaking with people in your network or his, and getting to know him over the phone or in person. You’ll probably discover that your counterpart has been formed just as much or more by his personality, experience, and profession as by his nationality.
2. Negotiate like a diplomat. To look further beyond stereotypes, consider the broader context of your negotiation. Harvard Business School Max H. Bazerman notes that this is a core skill of experienced diplomats. Thinking several steps ahead, diplomats tend to consider broad issues related to a negotiation, such as the changing politics and laws of a region, the likely response of community groups and activists to your decisions, and so on, Bazerman has observed. All of us can practice thinking broadly in international negotiation—and move beyond stereotypes in the process.
3. Take the pressure off. Interestingly, negotiators are more likely to adhere to cultural stereotypes when facing demands on their attention, including time pressure, Columbia University professor Michael W. Morris has found. In one study, for example, American participants facing time pressure were more likely than participants from Hong Kong to blame the individual rather than the situation for a problem—an American negotiating bias. Unfortunately, when we resort to stereotypical behavior, careful analysis tends to fall by the wayside. To encourage deeper thinking, lessen the stress surrounding your negotiation by taking frequent breaks, getting to know one another, and making sure deadlines aren’t too tight.

What other advice do you have for managing cultural differences in negotiation?

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In an effort to encourage students to be creative and learn from negotiation examples, Jim Lawrence, a long-time PON contributor, simulation author, attorney and practicing mediator with Frost Brown Todd LLC, likes to grade “those aspects of the simulation which the student controls and which are less, if not at all, dependent on the shared outcome of the exercise.”  Whether to grade student role-play performance, process and outcomes is a tricky question. Jim shared his thoughts on the value and purpose of grading students participating in negotiation simulations.

“If graded, students may opt for a more dependable strategy to get a higher grade rather than experiment with new strategies that they have not tested. Grading, on the other hand, permits an objective determination of a student’s ability to achieve a good outcome.”

Here are some negotiation examples of how he applies his grading process to role-play simulations that PON sells through the Teaching Negotiation Resource Center (TNRC).

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Grading a Student’s Negotiation Ethics

Many disputes involve real or perceived moral transgressions and parties often disagree about the details of the negotiation. Examples such as questionable ethical behavior can escalate tension and create an emotionally volatile discussion.

Bullard Houses
A two-party, multi-issue real estate negotiation exercise between representatives for a buyer and seller.
In this TNRC favorite, Jim likes to focus on three points:

• Will a student stay within his client-given authority when it comes to crafting an agreement?
• Will a student mislead opposing counsel by agreeing to a certain level of confidentiality, and then break that trust?
• Will a student be bound by the ethical requirement of seeking client approval before agreeing to attorney-to-attorney confidentiality?

DONS Negotiation
A four-person, two-party, two-round negotiation between a former couple and their lawyers regarding the knowing transmission of DONS, a fatal disease communicated through sexual intercourse.

This is one of the TNRC’s challenging negotiation examples that features an ethical dilemma at its core. Here, Jim will deduct marks if:

• A student acting as a lawyer knowingly misrepresents material facts, despite their client’s endorsement to deceive the other party.
• It becomes apparent that a student is unable to tell material from immaterial fact.
• If full, partial and misleading disclosure options are mishandled in the context of ethical and professional rules of conduct and common law fraud.

Teflex Products
A five-party, multi-issue negotiation among representatives of a pharmaceutical company, a medical drug manufacturer, and three consumer organizations over the delayed release of a new drug.

Jim’s students will receive higher grades if:

• The Chief Scientist or Pharmaceutical Company’s Representatives are truthful with the Consumer Group Representatives, or each other, about the reason why the new drug has not reached the market.
• They demonstrate observable, superior negotiation skills.

Grading Students’ Ability To Build A Working Relationship

When parties build a solid foundation for a business relationship at the outset of a negotiation, they give themselves a much better chance of arriving at a successful agreement. Jim stresses this fact to his students so they can focus on their internal and external relationships.

Chestnut Village
One of the TNRC’s multi-party, multi-issue negotiation examples between 3-4 construction company representatives and 5-6 neighborhood representatives over safety and nuisance complaints regarding a local construction project; internal team meetings precede external negotiations.
Students’ grades will suffer if:

• They are unable to build collaborative working relationships in their internal groups: the four-person construction crew or seven-person group of village residents.
• The negotiating groups cannot maintain their own internal working relationships, while also building new coalitions with their negotiation counterparts across the table.

MAPO – Administration Negotiation
A two-team, multi-issue collective bargaining negotiation examples between three police union representatives and three municipal representatives over police salaries, benefits, and working conditions.
Jim’s participants walk away with a better mark when they:

• Engage in an open and honest dialogue with their negotiation teammates in an effort to unearth important interests.
• Foster a collaborative environment with their opposition, thus creating a space to explore creative options.

How To Construct A Grade

During a 13-week term, Jim and his two TAs continuously observe the various groups in their class and note the group dynamic and individual contributions.

When grading his students Jim generally assigns each member of a successful team one point. Students can also gain another point, or lose a point, depending on their actions during the negotiation. For example, superior negotiation skills will earn students an extra point: an ethical infraction would cost a student one point. Over a term, six or more points will earn an A, five points an A-, four points a B+, etc.

Participation comprises 33% of the student’s overall grade. For class participation alone, students receive a minimum “B-“ which assumes they are always present in class but remain quiet and unremarkable.

The remaining 67% of the student’s overall grade is assigned to a final journal, which contains reflection and self-analysis on the supplemental readings, concepts discussed in class, and the student’s negotiation activity. In particular, Jim looks to the journal for:

• What students thought worked well?
• What surprises they might have encountered?
• How did they deal with those unexpected issues?
• What would they do differently next time?

Jim does not penalize students for experimenting with negotiation techniques regardless of whether those experiments are successful or not. However, he holds his class accountable for their actions on an ethical and inter-personal level. The resulting grades allow students to develop their own unique negotiation approach while understanding the importance of good process and ethical behavior.

James K. Lawrence is the author of the following role-play simulations available through the TNRC:

• John & Mary – Mediation Role Play
• Welding Connection (with co-author Marjorie Corman Aaron) – Mediation Role Play
• Leaves Before the Fall – Negotiation Role Play
• Teflex Products (co-authored Teaching Note with Lawrence Susskind) – Negotiation Role Play

What do you think of these negotiation examples? Share your thoughts in the comments.

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Originally published in 2014.

Three role-play simulations below focus on the mediation of values-based disputes and alternative dispute resolution. They are now available with Teaching Notes and an Annotated Bibliography from the Program on Negotiation Teaching Negotiation Resource Center.

Each game provides an opportunity for students to explore how mediation might be used to address values-based and identity-based disputes–not just interest-based disputes. The parties and their attorneys are asked to craft settlements that do not require them to compromise their fundamental beliefs or values. (Students do not have to be studying law to participate effectively in these simulations.)

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The first alternative dispute resolution simulation is entitled Williams v. Northville.

It is a five-person, non-scorable negotiation simulation based on a real case. It focuses on a dispute between a public school and a family over classroom discussions and educational materials that are part of a school diversity program depicting same-sex couples and their children. In this simulation, Jim and Jan Williams are the parents of two elementary school children in the Northville Public School System. They have asked the school principal for advance notification anytime homosexuality, same-sex marriage, or families headed by same-sex couples might be discussed in class, and for their children to be excused from such discussions. The principal has denied this request, explaining that no parental notification is required or appropriate when homosexuality is to be discussed as part of the regular school curriculum. The Williamses filed a lawsuit against the school district in state court asserting their right to have their children excused from any part of the curriculum that is contrary to their religious beliefs. The judge resolved the legal question in favor of the school district, holding that parents do not have the right to dictate what a public school may teach their children. The simulation begins when the Williamses file an appeal of the lower court’s decision. Prior to oral argument, the appellate court administrator has urged the parties (and their lawyers) to try to mediate the dispute.

The second alternative dispute resolution simulation is called Ellis v. MacroB.

It is another five-person, non-scorable simulation based on a real dispute between an employee and his/her employer, a large, privately held software company. Until recently, Ellis was senior project manager at MacroB, headquartered in California. The simulation begins when a company-wide diversity campaign is launched featuring a series of diversity posters, including one that reads: “I am a gay man and I am MacroB.” The posters were placed in employee work areas, including on the exterior wall of Ellis’s cubicle. Ellis is devoutly religious and part of a faith tradition that holds that homosexuality is sinful and wrong. Deeply disturbed by the poster, Ellis taped several Bible verses to the inside wall of his/her cubicle including quotations condemning homosexuality and predicting dire consequences for those who engages in homosexual acts. When asked to remove the verses, Ellis refused. After several meetings with the company’s diversity manager Ellis offered to remove the passages if MacroB removed its posters depicting homosexual employees. When no agreement was reached, Ellis was given a week off with pay to reconsider. MacroB removed the Bible verses that Ellis had posted. Upon returning to work, Ellis reposted all of the Bible passages, refused to remove them, and was fired for insubordination. Ellis and MacroB reluctantly agreed to speak with a mediator. After hearing from both sides, the mediator suggested that resolution might be possible. The simulation begins as both sides and their lawyers are about to meet the mediator.

The third alternative dispute resolution simulation is called Springfield OutFest.

Based on a real case, it focuses on a dispute between two private organizations and a city over the terms under which a permit for a festival on city property will or won’t be granted. The first organization, Springfield Pride, is a local advocacy group for Springfield’s sizeable lesbian, gay, bisexual, and transgender (LGBT) community. Springfield Pride organizes an annual street festival called the OutFest to celebrate National Coming Out Day. Salvation Now!, a nationwide network of grassroots religious and social campaigners seeks to bring its religious message directly to those it considers to be living sinful lifestyles. In years past, tensions have flared between the two groups. In 2010, they clashed during the OutFest and the police had to restore order. The confrontation dampened the festival atmosphere and attracted unfavorable media attention to the city and the OutFest. The simulation begins one year later. Springfield Pride is again requesting a permit to hold its upcoming OutFest in the city park. Fearing a confrontation and worried about its liability, the city has asked the parties (and their lawyers) to meet and discuss proposed guidelines and restrictions.

All three cases present authentic and hard-to-mediate values-based and identity-based disputes. The Teaching Notes, written by students in Professor Lawrence Susskind’s course at Harvard Law School, reviews five different strategies that mediators might want to try in these situations. Key teaching points include the limits on interest trading when values and identity are at stake, the possibility that resolution may not be the most appropriate goal in such situations, and the need for mediators in values-based disputes to learn how to help parties confront their value differences effectively.

Have you tried any of these alternative dispute resolution simulations, and what is your feedback?

This article originally appeared in the Winter 2010 issue of “Teaching Negotiation”, a bi-annual e-newsletter from NP@PON, available here.

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Avoid cross-cultural misunderstandings with these negotiation exercises

It’s no secret that communication and negotiation etiquette varies widely across cultures. In France, for example, it is rude to talk money over dinner, while in Brazil the American ‘A-OK’ gesture (thumb and forefinger forming a circle) can be a major insult.

The increasingly diverse and global nature of business sets the stage for disputes that can cross ethnic and cultural lines—fueling the need for expertise in cross-cultural negotiations. Understanding when, where, how, and with whom it is appropriate to negotiate is extremely important when working across cultures. Negotiators and mediators must understand the cultural norms of other parties, especially when they differ from their own.

To help teach these nuances and tactics, the Teaching Negotiation Resource Center (TNRC) has developed several negotiation exercises that address the challenges that are inherent to cross-cultural negotiations.

Two of the TNRC’s most useful negotiation exercises for learning how to manage cross-cultural negotiations are Hiring a Newtonian and Pacrim Dispute.

Hiring a Newtonian – Featured Negotiation Exercises

A human resources director has been tasked with hiring a computer programmer, a recent immigrant from Newtonia who won’t accept the position until certain requirements are met.

However, the Newtonian believes that he cannot disclose the specific requirements without invoking bad luck. He also has other cultural expectations of how the human resources director should behave in order to comfortably transact business. This interesting exercise allows participants to:

• Examine the hidden nature of cultural issues in negotiation
• Explore ways to deal with the difficulty of not fully understanding your counterpart’s interests
• Gain a better understanding of a negotiator’s cultural preferences

Pacrim Dispute – Featured Negotiation Exercises

When people from high-context and low-context cultures sit down to negotiate, they must understand each other’s “cultural baggage” in order to have a chance to reach agreement. This tri-party negotiation exercise examines the cultural roadblocks that can prevent parties from reaching agreement. In this dispute over trading rice, participants examine the roles that mindset and culture play in reaching agreements, by:

• Identifying problems that can occur when people from different societies negotiate
• Considering different ways of seeing a dispute
• Engaging in the dynamics of a three-party negotiation
• Exercising creative thinking, option generating, and problem solving
• Demonstrating the benefits of a win-win cooperative agreement
• Working through cultural barriers

Do you teach negotiation to students from different cultural backgrounds?

Are you teaching students how to negotiate in a cross-cultural context? Do you teach a “one world” model of negotiation; or, are there cultural variables that require changes in the basic model of negotiation that you teach?

The Program On Negotiation at Harvard Law School invited three members of its highly experienced negotiation faculty to share insights and lessons about how to negotiate and teach, in various cross-cultural contexts.

In this enlightening video Jeswald Salacuse, Eileen Babbitt and David Fairman speak openly as they:

• Explore culture and context: how does each affect the other?
• Describe carefully honed teaching techniques and negotiation exercises.
• Divulge personal challenges they faced in their practice and in their classrooms.

Here’s a brief sample:

Jeswald Salacuse is Henry J. Braker Professor of Law at the Fletcher School of Law and Diplomacy, Tufts University, and served as the Fletcher School’s Dean for nine years.

Eileen Babbitt is Professor of Practice of International Conflict Management, Director of the Institute for Human Security, and Co-Director of the Program on Human Rights and Conflict Resolution at The Fletcher School.

David Fairman is Managing Director at the Consensus Building Institute, Associate Director of the MIT-Harvard Public Disputes Program, and former Lecturer in MIT’s Department of Urban Studies and Planning.

Larry Susskind, vice-chair of PON, moderates the discussion, including a Q&A session at the end of each presentation. He also hosts a captivating interview with the three panelists that crystallizes the most valuable take-away lessons from the exchange.

This video is downloadable as a 14-piece series (each segment is between 2-4 minutes in length) or as a single continuous video that includes all segments (total running time is 40 minutes). A single purchase allows customers to download both versions if they so wish.

Take your training to the next level with the TNRC

The Teaching Negotiation Resource Center offers a wide range of effective teaching materials, including

• Over 200 role-play simulations
• Critical case studies
• Enlightening periodicals
• More than 30 videos
• 100-plus books

Most TNRC materials are designed for educational purposes— for use in college classrooms or corporate training settings. TNRC cases and exercises help mediators and facilitators introduce their clients to a process or issue and help individuals who want to enhance their negotiation skills and knowledge.

Role-play simulations introduce participants to new negotiation and dispute resolution tools, techniques and strategies. Videos are also a helpful way of introducing viewers to key concepts, and TNRC books, case studies, and periodicals address the theory and practice of negotiation and conflict management.

Check out all that the TNRC has in store >>

Let us know about your cross-cultural negotiation experiences in the comments.

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Originally published in August, 2014.