When the other side appears to hold all the leverage in a negotiation, how should you respond? This question has become increasingly pressing for universities and libraries negotiating subscription agreements with major academic publishers that produce peer-reviewed scientific journals.

Faced with steadily escalating pricing demands—and growing pressure to provide broader, more affordable access to research—many institutions have begun experimenting with creative power tactics in negotiation to shift the balance, challenge the status quo, and pursue their negotiation goals more effectively.

An Increasingly Unsustainable Business Model

While newspapers and magazines have struggled to stay afloat in the internet era, the largest publishers of academic journals—including Elsevier, Springer, and Wiley—have increased their profits exponentially, collectively earning at least $23 billion in 2020.

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The companies’ business model capitalizes on free labor and government funding. Researchers submit their articles—often, government funded—to the publishers, which enlist other researchers to review and edit the work without being paid. Publishers take ownership of accepted articles without paying authors, then sell journal subscriptions to universities, libraries, and the federal government for ever-rising fees. “It is as if the New Yorker or the Economist demanded that journalists write and edit each other’s work for free, and asked the government to foot the bill,” writes Stephen Buranyi in the Guardian.

Researchers whose institutions can’t afford such subscriptions often have difficulty accessing the articles they need to conduct their work. Many universities and libraries that do choose to subscribe say they have little leverage in price negotiations with the publishers, yet some have come up with effective power tactics in negotiation.

Open Access and Beyond

Challenging the status quo, thousands of so-called open-access research journals have sprung up under a different business model. Instead of charging subscribers for content, they charge researchers to publish their papers—about $1,000, in some cases—and then post them for free online. Large academic publishers such as the Dutch firm Elsevier have launched their open-access journals, though they tend to be less prestigious than their subscription-based journals.

Many institutions view open access as the future of academic publishing. Take the University of California (UC) system, which generates nearly 10% of all U.S. research output. UC took the bold move of dropping its nearly $11 million annual Elsevier subscription in February 2019 in pursuit of open access.

The hardball negotiation tactic got Elsevier’s attention. After off-and-on negotiations, the two sides reached a breakthrough in June 2020. “They came to us with an attitude of wanting to work with us to find common ground, so that they could reenter business with us, as we’re a major customer,” UC Berkeley campus library head Jeffrey MacKie-Mason said in an interview on the UC website. In March 2021, UC announced it had reached a “mutually beneficial” agreement with Elsevier that will make all research published in Elsevier journals with a UC lead author open access.

In 2023, the University of Oregon (UO) and the University of Washington also paused their Elsevier subscriptions, citing pricing that has outpaced inflation. “It’s possible that Elsevier may start to rethink things if enough schools are dropping out of these deals,” UO collection management librarian Dave Fowler told student newspaper, the Daily Emerald.

Banding Together

Other power tactics in negotiation draw on strength in numbers. A consortium of more than 700 German research institutions and libraries called Project DEAL reached separate agreements with publishers Wiley and Springer Nature to make it easier for authors from member institutions to publish their papers open access for a fee (€2,750 per article, or about $3,000), Science reported in 2019.

Elsevier proved a tougher sell. When a negotiation deadline passed without an agreement in January 2017, 200 German research institutions let their Elsevier subscriptions lapse to try to spur concessions. But Project DEAL and Elsevier have remained at an impasse since 2018.

Support from a Key Partner

Sometimes interested bystanders can contribute their own power tactics in negotiation and decision-making. The U.S. government has long pushed for the research it funds to be more affordable and available. In 2016, then–U.S. president Barack Obama’s Office of Science and Technology Policy (OSTP) mandated that certain large government agencies require the manuscripts they fund to be freely available within a year of publication. In 2022, under the Biden White House, the OSTP expanded the directive by requiring academic journals to provide immediate access to all publicly funded papers.

3 Power Tactics in Negotiation

When facing your own personal Goliath, keep these three tips in mind:

1. Look for strength in numbers. You might be able to increase your negotiating leverage significantly by forming a coalition with other weak parties. Just be careful to avoid breaking antitrust rules and laws when teaming up with competitors.
2. Seek out powerful allies. Government agencies and officials, advocacy and watchdog groups, and other bystanders may have an interest in helping you address a power imbalance. Consider who might help, then show them what they have to gain.
3. Be willing to walk away. If you can’t make inroads with the other party no matter how hard you try, consider walking away—but be sure you can survive a long impasse or replace them with other partners.

What other power tactics in negotiation have you found helpful when your bargaining position was weak?

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In this edition of Dear Negotiation Coach, Harvard Business School professor Max H. Bazerman describes how online negotiation could increase efficiency and trust in many realms.

In-person negotiations can offer advantages over electronic negotiations—for example, in terms of rapport building and value creation. But what advantages might online negotiation have over face-to-face negotiation?

Max H. Bazerman: Online negotiation has the ability to solve trust problems by using large quantities of information to make negotiation processes more efficient.

Consider the insurance industry, which is based on a very simple model: People pay premiums for coverage, then file a claim and receive a check when they suffer a loss or damages. Despite this simplicity, insurance companies spend billions on buildings, bureaucrats, and lawyers to pay and contest claims. Why is the claims process so inefficient and costly? Because, far too often, claims processing turns into an adversarial negotiation. Claims professionals often try to avoid paying out claims, while customers sometimes try to over-represent their claims.

Online negotiation and dispute resolution have the ability to create a more efficient, more trusting process.

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.

Find out how online negotiation can create a relationship based on trust

How so?

MHB: People sometimes exaggerate their claims because they assume their insurance company will not negotiate honestly. Now imagine an online insurance company that wants to gain a reputation for being honest, fair, and fast. It has customers fill out their claims online. Using artificial intelligence and machine learning, the company then can easily determine whether the customer has a history of trying to cheat insurers. If not, the company should feel fairly confident about trusting the customer and making an instant payment. If the company could eventually assert that it pays 85% of its claims within a minute, it could help transform the typical negotiation process in this industry and save a great deal of money for all parties.

Online insurance companies could further encourage customers to be honest by drawing on new insights from psychology. We know, for example, from my research with Lisa Shu of the London School of Business and others that if you have people sign a form before they fill it out (signing at the top), they’re more likely to report honestly than when they sign after they fill out the form. Similarly, companies could prompt honesty by reminding customers before they file a claim online that an electronic record of it will exist forever. The company could also ask customers to describe the circumstances of their claim in a video created online. Knowing that they are being recorded should reduce the likelihood that people would be psychologically comfortable making a false claim.

Can online negotiation help other industries where trust is an issue?

MHB: In almost any situation where people are influencing each other’s decisions online and the party providing information has the potential to be dishonest, psychological insights can generate higher integrity and a better process. For example, one of the problems with online reviews is that people often submit biased or even fraudulent reviews. An entrepreneur might get 200 of his friends to write positive online reviews of his new restaurant—or bad reviews about the competition. Figuring out how to solve the honesty problem in that context would also be useful.

You’ve discussed advantages of online negotiation. When is it better to negotiate in person?

MHB: Negotiating in person still has strong advantages for complex negotiations where joint gains and trades are possible. Similarly, if the negotiation is more social, then there may be good reasons to negotiate in person. In online dating, for example, the interactions involved in negotiating the terms of a first date have advantages and disadvantages. There’s obviously enormous efficiency to the single person who wants to sift through hundreds or thousands of options a day. On the other hand, you may not be able to trust the information that others give. There may be ways to improve the information that’s provided in that online world as well.

What’s your experience with online negotiation? 

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.

The BATNA (best alternative to a negotiated agreement) concept, popularized by Roger Fisher, William Ury, and Bruce Patton in their book Getting to Yes (Penguin Books, third edition, 2011), has been disseminated all over the world and doubtless helped thousands avoid settling for less than what they want in negotiations. When you have identified your BATNA, you can compare it to the offers you receive, turn down subpar offers, and exercise your BATNA instead. But it’s important to consider international cultural differences.

We tend to assume that the BATNA concept translates equally well across cultures. But in an article, Facultad Libre de Derecho de Monterrey, Mexico professor Gregory J. Marsden and University of Michigan professor George J. Siedel argue that in some nations, resorting to your BATNA could get you into legal hot water if you’re not careful.

Claim your FREE copy: Negotiation Skills

Build powerful negotiation skills and become a better dealmaker and leader. Download our FREE special report, Negotiation Skills: Negotiation Strategies and Negotiation Techniques to Help You Become a Better Negotiator, from the Program on Negotiation at Harvard Law School.

Your BATNA, international cultural differences, and how to avoid a bad deal

The BATNA concept was developed in a common-law country, the United States, where courts rely heavily on precedents. By comparison, most other nations have a civil-law system that relies more on statutes and codes. In common-law countries, including the United States, parties are expected to understand that they face the risk of not reaching agreement. If you decide not to accept a deal and turn to your BATNA, typically there’s no harm, no foul.
However, international cultural differences around BATNAs could get you into legal hot water if you’re not careful.
In civil-law countries, laws often prohibit negotiators from walking away from a negotiation without just cause after talks have progressed to a certain point, such as when a party has reason to believe a contract is imminent, write Marsden and Siedel. The nature and extent of this obligation differ from one country to the next.

While negotiators in a common-law country need only consider their own interests when deciding whether to abandon talks in favor of their BATNA, those in a civil-law country may have a duty to also consider their current counterpart’s interests before breaking off a negotiation.

A 2004 analysis prepared by the International Association of Young Lawyers concluded that in many European countries, if the abandoned party can prove that a contract appeared to be forthcoming, the departing party can be required to compensate him or her for damages and certain expenses.

This doesn’t mean that negotiators aren’t allowed to turn to a better deal when negotiating in civil-law countries. Rather, before negotiating, you should stipulate in writing that you reserve the right to break off talks during the process, keeping in mind that you could still be liable for doing so in certain situations. Moreover, there may be circumstances in common-law nations such as the United States where you would be bound to an agreement that hasn’t yet been finalized.

Above all, this risk highlights international cultural differences and the importance of consulting with experienced contract lawyers in the nations where you are doing business before you negotiate to ensure that you know when and how you can resort to your BATNA.

Resource: “The Duty to Negotiate in Good Faith: Are BATNA Strategies Legal?” by Gregory J. Marsden and George J. Siedel,Berkeley Business Law Journal, 2017.

Have you had experiences where international cultural differences played a role in your negotiations?

In this new monthly feature, we ask experts from the Program on Negotiation to share their latest ideas and insights on negotiation. This month, Harvard Business School professor Max H. Bazerman describes how web-based negotiations could increase efficiency and trust in many realms.

Negotiation Briefings: In-person negotiations can offer advantages over electronic negotiations—for example, in terms of rapport building and value creation. But what advantages might web-based negotiation have over face-to-face negotiation?

Max H. Bazerman: Web-based negotiation has the ability to solve trust problems by using large quantities of information to make negotiation processes more efficient.

Consider the insurance industry, which is based on a very simple model: People pay premiums for coverage, then file a claim and receive a check when they suffer a loss or damages. Despite this simplicity, insurance companies spend billions on buildings, bureaucrats, and lawyers to pay and contest claims. Why is the claims process so inefficient and costly? Because, far too often, claims processing turns into an adversarial negotiation. Claims professionals often try to avoid paying out claims, while customers sometimes try to over-represent their claims.

Online negotiation and dispute resolution have the ability to create a more efficient, more trusting process.

NB: How so?

MHB: People sometimes exaggerate their claims because they assume their insurance company will not negotiate honestly. Now imagine an online insurance company that wants to gain a reputation for being honest, fair, and fast. It has customers fill out their claims online. Using artificial intelligence and machine learning, the company then can easily determine whether the customer has a history of trying to cheat insurers. If not, the company should feel fairly confident about trusting the customer and making an instant payment. If the company could eventually assert that it pays 85% of its claims within a minute, it could help transform the typical negotiation process in this industry and save a great deal of money for all parties.

Online insurance companies could further encourage customers to be honest by drawing on new insights from psychology. We know, for example, from my research with Lisa Shu of the London School of Business and others that if you have people sign a form before they fill it out (signing at the top), they’re more likely to report honestly than when they sign after they fill out the form. Similarly, companies could prompt honesty by reminding customers before they file a claim online that an electronic record of it will exist forever. The company could also ask customers to describe the circumstances of their claim in a video created online. Knowing that they are being recorded should reduce the likelihood that people would be psychologically comfortable making a false claim.

NB: Can web-based negotiations help other industries where trust is an issue?

MHB: In almost any situation where people are influencing each other’s decisions online and the party providing information has the potential to be dishonest, psychological insights can generate higher integrity and a better process. For example, one of the problems with online reviews is that people often submit biased or even fraudulent reviews. An entrepreneur might get 200 of his friends to write positive online reviews of his new restaurant—or bad reviews about the competition. Figuring out how to solve the honesty problem in that context would also be useful.

NB: You’ve discussed advantages of web-based negotiations. When is it better to negotiate in person?

MHB: Negotiating in person still has strong advantages for complex negotiations where joint gains and trades are possible. Similarly, if the negotiation is more social, then there may be good reasons to negotiate in person. In online dating, for example, the interactions involved in negotiating the terms of a first date have advantages and disadvantages. There’s obviously enormous efficiency to the single person who wants to sift through hundreds or thousands of options a day. On the other hand, you may not be able to trust the information that others give. There may be ways to improve the information that’s provided in that online world as well.

What’s our leverage? U.S. Senate minority leader Chuck Schumer asked himself that question continually during the congressional recess this August, he told the New York Times, following the Republicans’ multiple failed attempts to repeal the Affordable Care Act. By answering that question, Schumer and House minority leader Nancy Pelosi were able to set up their party for potential year-end wins—with help from an unlikely counterpart.

A promising issue

As the minority party in both the House and Senate, the Democrats had been consigned to the sidelines on key legislation, only to watch the Republicans repeatedly succumb to deep internal divisions. Schumer wanted to identify an issue that Senate majority leader Mitch McConnell and House Speaker Paul Ryan felt they needed to pass but couldn’t on their own because of their divided caucus. In exchange for votes on such an issue, Democrats might be able to win concessions on their own priorities, such as protection for young undocumented immigrants.

There was such an issue, Schumer and Pelosi agreed: the debt ceiling. With the U.S. Treasury set to exhaust its borrowing authority on September 29, Congress would have to vote to allow the nation to take on further debt by that date to avoid a fiscal catastrophe. McConnell and Ryan were anxious to do so, as were Schumer and Pelosi.

But congressional conservatives wanted the debt-ceiling suspension to be tied to spending cuts or fiscal reforms. Although the House might have been able to pass such a bill without Democratic support, the Senate likely would not, the majority leaders understood. Treasury Secretary Steven Mnuchin and others in the Trump administration lobbied McConnell and Ryan to support a “clean” debt-ceiling bill—one untethered by any other controversial issues—to increase its likelihood of winning over Democrats, reports Politico.

Ryan and McConnell quietly began preparing to pass a clean bill. Meanwhile, Democrats geared up to try to trade their votes for concessions on immigration or another issue, such as a reauthorization of health-insurance programs for low-income children.

A matter of time

Then Hurricane Harvey roared in and toppled these careful calculations. Congress was united in its desire to send emergency aid to Texas for the recovery, but members disagreed on how to do so. Some House Republicans supported linking hurricane relief to the debt-ceiling vote, and Mnuchin told Fox News Sunday that he and the president did as well. If the debt ceiling were tied to hurricane relief, Democrats would risk looking petty if they tried to add controversial concessions on immigration.

Ryan, McConnell, and the White House forged ahead with a bill linking hurricane relief with a debt-ceiling vote. With Hurricane Irma looming in the wake of Harvey’s devastation, the House voted overwhelmingly—419 to 3—on September 6 to authorize almost $8 billion in emergency aid.

The debt-ceiling side of the bill still needed to be negotiated. Schumer and Pelosi knew the time wasn’t right to press for concessions on a hot-button issue such as immigration, but they realized they could try to move that negotiation down the road by pushing for only a three-month suspension of the debt ceiling. That would set them up for another debt-limit battle at the end of the year. At that point, Trump and Republicans would again need Democratic votes on the issue—and might be willing to make significant concessions on issues such as immigration and health care.

When he got wind of the proposal, Ryan called it “ridiculous and disgraceful,” and accused the Democratic leaders of playing politics.

A surprise alliance

The same day the Harvey measure sailed through the House, Ryan, McConnell, Pelosi, and Schumer met with Trump and Mnuchin in the Oval Office to hammer out an agreement on the debt ceiling.

McConnell and Ryan proposed an 18-month debt-ceiling suspension, which would postpone the next controversial vote on government debt until after the 2018 midterm elections. Mnuchin agreed; the Democrats balked. The Republicans said they could live with a six-month suspension. Pelosi and Schumer stood firm at three months.

Then, in defiance of his party and his own Treasury Secretary, Trump shocked everyone present by siding with the Democrats. For Trump, who had been publicly disparaging McConnell over Congress’s inability to advance his agenda, an alliance with Democrats marked a sharp and unexpected swerve toward bipartisanship.

Happy now?

“Everybody was happy,” Trump told reporters after the meeting. “Not too happy, because you can never be toohappy, but they were happy enough.”

In fact, although they voted the bill through, Republicans weren’t happy with it at all. There had been no need for Trump to concede to “Chuck and Nancy,” as the president called them after the meeting, because they likely were bluffing, Republicans believed: congressional Democrats never would have voted against hurricane relief and a debt-ceiling suspension, no matter how short or long.

“It was a really good moment of some bipartisanship,” said Schumer. But given the president’s mercurial nature, no one was willing to predict whether it was the dawn of a more collaborative era in Washington or simply a one-off deal. “We’ll see,” Schumer said.

3 questions for those in a one-down position:

1. “What’s my leverage?” Tradeoffs across issues can offer a rich source of value in negotiation but sometimes can be hard to implement. When you’re the weaker party, you might gain the leverage you need to make tradeoffs by exploiting disharmony among the parties across the table.

2. “Can I use time to my advantage?” If you can’t get what you want in the present, you may be able to set yourself up to reach your goals at a future date.

3. “How can I win over an unlikely ally?” Don’t write off potential counterparts just because they’ve allied themselves with your rivals. Show them what you can do for them, and they may be willing to switch teams.

What’s our leverage? U.S. Senate minority leader Chuck Schumer asked himself that question continually during the congressional recess this August, he told the New York Times, following the Republicans’ multiple failed attempts to repeal the Affordable Care Act. By answering that question, Schumer and House minority leader Nancy Pelosi were able to set up their party for potential year-end wins—with help from an unlikely counterpart.

A promising issue

As the minority party in both the House and Senate, the Democrats had been consigned to the sidelines on key legislation, only to watch the Republicans repeatedly succumb to deep internal divisions. Schumer wanted to identify an issue that Senate majority leader Mitch McConnell and House Speaker Paul Ryan felt they needed to pass but couldn’t on their own because of their divided caucus. In exchange for votes on such an issue, Democrats might be able to win concessions on their own priorities, such as protection for young undocumented immigrants.

There was such an issue, Schumer and Pelosi agreed: the debt ceiling. With the U.S. Treasury set to exhaust its borrowing authority on September 29, Congress would have to vote to allow the nation to take on further debt by that date to avoid a fiscal catastrophe. McConnell and Ryan were anxious to do so, as were Schumer and Pelosi.

But congressional conservatives wanted the debt-ceiling suspension to be tied to spending cuts or fiscal reforms. Although the House might have been able to pass such a bill without Democratic support, the Senate likely would not, the majority leaders understood. Treasury Secretary Steven Mnuchin and others in the Trump administration lobbied McConnell and Ryan to support a “clean” debt-ceiling bill—one untethered by any other controversial issues—to increase its likelihood of winning over Democrats, reports Politico.

Ryan and McConnell quietly began preparing to pass a clean bill. Meanwhile, Democrats geared up to try to trade their votes for concessions on immigration or another issue, such as a reauthorization of health-insurance programs for low-income children.

A matter of time

Then Hurricane Harvey roared in and toppled these careful calculations. Congress was united in its desire to send emergency aid to Texas for the recovery, but members disagreed on how to do so. Some House Republicans supported linking hurricane relief to the debt-ceiling vote, and Mnuchin told Fox News Sunday that he and the president did as well. If the debt ceiling were tied to hurricane relief, Democrats would risk looking petty if they tried to add controversial concessions on immigration.

Ryan, McConnell, and the White House forged ahead with a bill linking hurricane relief with a debt-ceiling vote. With Hurricane Irma looming in the wake of Harvey’s devastation, the House voted overwhelmingly—419 to 3—on September 6 to authorize almost $8 billion in emergency aid.

The debt-ceiling side of the bill still needed to be negotiated. Schumer and Pelosi knew the time wasn’t right to press for concessions on a hot-button issue such as immigration, but they realized they could try to move that negotiation down the road by pushing for only a three-month suspension of the debt ceiling. That would set them up for another debt-limit battle at the end of the year. At that point, Trump and Republicans would again need Democratic votes on the issue—and might be willing to make significant concessions on issues such as immigration and health care.

When he got wind of the proposal, Ryan called it “ridiculous and disgraceful,” and accused the Democratic leaders of playing politics.

A surprise alliance

The same day the Harvey measure sailed through the House, Ryan, McConnell, Pelosi, and Schumer met with Trump and Mnuchin in the Oval Office to hammer out an agreement on the debt ceiling.

McConnell and Ryan proposed an 18-month debt-ceiling suspension, which would postpone the next controversial vote on government debt until after the 2018 midterm elections. Mnuchin agreed; the Democrats balked. The Republicans said they could live with a six-month suspension. Pelosi and Schumer stood firm at three months.

Then, in defiance of his party and his own Treasury Secretary, Trump shocked everyone present by siding with the Democrats. For Trump, who had been publicly disparaging McConnell over Congress’s inability to advance his agenda, an alliance with Democrats marked a sharp and unexpected swerve toward bipartisanship.

Happy now?

“Everybody was happy,” Trump told reporters after the meeting. “Not too happy, because you can never be toohappy, but they were happy enough.”

In fact, although they voted the bill through, Republicans weren’t happy with it at all. There had been no need for Trump to concede to “Chuck and Nancy,” as the president called them after the meeting, because they likely were bluffing, Republicans believed: congressional Democrats never would have voted against hurricane relief and a debt-ceiling suspension, no matter how short or long.

“It was a really good moment of some bipartisanship,” said Schumer. But given the president’s mercurial nature, no one was willing to predict whether it was the dawn of a more collaborative era in Washington or simply a one-off deal. “We’ll see,” Schumer said.

3 questions for those in a one-down position:

1. “What’s my leverage?” Tradeoffs across issues can offer a rich source of value in negotiation but sometimes can be hard to implement. When you’re the weaker party, you might gain the leverage you need to make tradeoffs by exploiting disharmony among the parties across the table.

2. “Can I use time to my advantage?” If you can’t get what you want in the present, you may be able to set yourself up to reach your goals at a future date.

3. “How can I win over an unlikely ally?” Don’t write off potential counterparts just because they’ve allied themselves with your rivals. Show them what you can do for them, and they may be willing to switch teams.

The BATNA (best alternative to a negotiated agreement) concept, popularized by Roger Fisher, William Ury, and Bruce Patton in their book Getting to Yes (Penguin Books, second edition, 1991), has been disseminated all over the world and doubtless helped thousands avoid settling for less than what they want in negotiations. When you have identified your BATNA, you can compare it to the offers you receive, turn down subpar offers, and exercise your BATNA instead.

We tend to assume that the BATNA concept translates equally well across cultures. But in a new article, Facultad Libre de Derecho de Monterrey, Mexico professor Gregory J. Marsden and University of Michigan professor George J. Siedel argue that in some nations, resorting to your BATNA could get you into legal hot water if you’re not careful.

The BATNA concept was developed in a common-law country, the United States, where courts rely heavily on precedents. By comparison, most other nations have a civil-law system that relies more on statutes and codes. In common-law countries, including the United States, parties are expected to understand that they face the risk of not reaching agreement. If you decide not to accept a deal and turn to your BATNA, typically there’s no harm, no foul.

In some nations, resorting to your BATNA could get you into legal hot water if you’re not careful.

By contrast, in civil-law countries, laws often prohibit negotiators from walking away from a negotiation without just cause after talks have progressed to a certain point, such as when a party has reason to believe a contract is imminent, write Marsden and Siedel. The nature and extent of this obligation differ from one country to the next.

While negotiators in a common-law country need only consider their own interests when deciding whether to abandon talks in favor of their BATNA, those in a civil-law country may have a duty to also consider their current counterpart’s interests before breaking off a negotiation.

A 2004 analysis prepared by the International Association of Young Lawyers concluded that in many European countries, if the abandoned party can prove that a contract appeared to be forthcoming, the departing party can be required to compensate him or her for damages and certain expenses.

This doesn’t mean that negotiators aren’t allowed to turn to a better deal when negotiating in civil-law countries. Rather, before negotiating, you should stipulate in writing that you reserve the right to break off talks during the process, keeping in mind that you could still be liable for doing so in certain situations. Moreover, there may be circumstances in common-law nations such as the United States where you would be bound to an agreement that hasn’t yet been finalized.

Above all, this risk highlights the importance of consulting with experienced contract lawyers in the nations where you are doing business before you negotiate to ensure that you know when and how you can resort to your BATNA.

Resource: “The Duty to Negotiate in Good Faith: Are BATNA Strategies Legal?” by Gregory J. Marsden and George J. Siedel,Berkeley Business Law Journal, 2017.

Imagine that you are a purchasing agent who just scored a significant price concession from a supplier. Now it’s time to hang up the phone and move on to another negotiation with a different supplier. You’re feeling proud of how you handled the last negotiation and confident that this next negotiation will go just as well, maybe even better— but will this confidence work in your favor? Perhaps not, according to new research by Virginia Tech professor William J. Becker and Massachusetts Institute of Technology professor Jared R. Curhan.

The carryover effect

Emerging research has found that emotions triggered by a particular situation (whether a negotiation or some other incident) can carry over and affect our decisions in subsequent negotiations and other financial situations.

In one study, for example, participants who were induced to feel angry had difficulty accurately assessing their own interests in a subsequent negotiation as compared with those in a neutral state, Harvard Kennedy School professor Jennifer Lerner and her colleagues found. This was true despite the fact that the participants’ anger was unrelated to the negotiation at hand.

In another study, as compared with participants in a neutral state, those induced to feel sad were willing to pay much more to buy an item, apparently due to a desire to enhance their sense of self, Lerner and her coauthors found.

Interestingly, in both studies, participants insisted, incorrectly, that their unrelated emotions (anger or sadness) did not affect their subsequent financial decisions. It seems we are largely unaware when feelings triggered by one situation—so-called incidental emotions—linger and affect our future decisions.

Purchasing agents, sales representatives, lawyers in certain realms, human resource professionals, and real estate agents often move from one negotiation to the next with little or no break.

Wheeling and dealing

Incidental emotions may be particularly relevant to professionals who engage in frequent negotiations with different individuals and organizations.

In certain businesses and professions, negotiators can spend months hammering out a single deal—a labor contract, a merger between two large companies, the settlement of a class-action lawsuit, and so on. During such prolonged negotiations, counterparts can gain valuable information from one another’s emotions: interpreting anger as a sign to go back to the drawing board, irritation as a motivation to speed things along, and cheerfulness as an indication that talks are on the right track, for example.

But in other jobs and industries, it’s more common for negotiators to deal with one counterpart after another— a phenomenon known as sequential negotiations. Purchasing agents, sales representatives, lawyers in certain realms, human resource professionals, and real estate agents often move from one negotiation to the next with little or no break, for example.

How we feel at the end of one negotiation—a concept known as subjective value—will quite naturally trigger emotions that may spill over and affect our subsequent negotiations with other counterparts.

Pride and overconfidence

In a lab experiment and a field experiment, Becker and Curhan tested this spillover effect.

In their lab experiment, the researchers had undergraduate business students play the role of a buyer or seller in a negotiation simulation four times in a row, each time facing a different counterpart. When participants felt bad after a particular negotiation, they tended to perform better on the negotiation that followed, the results showed. The opposite was also true: the better participants felt after a negotiation, the less effectively they performed in a subsequent negotiation.

In addition, positive feelings among male participants tended to lead to a sense of pride, which in turn led
them to perform worse, rather than better, in a subsequent negotiation. This effect wasn’t found for women; some other, unidentified effect must have explained their results. Pride, which tends to be stronger in men,
may have led men to be inappropriately overconfident in their abilities following a negotiation, to their detriment in the next round.

In their field experiment, Becker and Curhan studied the actual negotiations of employees of a U.S. transportation company for lower rates from various fuel suppliers. The results again showed that participants who felt better as a result of one negotiation performed worse in their next negotiation, and vice versa. In addition, for both men and women, positive feelings triggered a sense of pride, which was linked to worse results in a subsequent negotiation.

Managing incidental emotions

Our emotions can carry over from one negotiation to affect the next, often to our detriment, the results of Becker and Curhan’s study suggest.

The following guidelines can help us manage the effects of such incidental emotions on our negotiations:

• Take breaks between negotiations.
  When possible, take time off following a negotiation to let emotions such as pride dissipate, lest they carry over and hinder results in your next negotiation. Moreover, managers should be attuned to the carryover effects of emotion and give their employees flexibility over their negotiation scheduling.
• Pinpoint the emotion’s source.
  Research by Norbert Schwarz (University of Southern California) and Gerald Clore (University of Virginia) has found that labeling the source of an incidental emotion lessens its impact on our judgments and decisions. So if you are feeling buoyed by a negotiation victory, remind yourself that your mood was prompted by your most recent performance and is not necessarily relevant to your next negotiation.
• Strive for a humble mindset.
  Because pride from one negotiation can have unwanted consequences on our next one, Becker and Curhan recommend that we try to foster a humbler mindset after a success by asking ourselves what we would do differently in the next negotiation.

Imagine that you are a purchasing agent who just scored a significant price concession from a supplier. Now it’s time to hang up the phone and move on to another negotiation with a different supplier. You’re feeling proud of how you handled the last negotiation and confident that this next negotiation will go just as well, maybe even better— but will this confidence work in your favor? Perhaps not, according to new research by Virginia Tech professor William J. Becker and Massachusetts Institute of Technology professor Jared R. Curhan.

The carryover effect

Emerging research has found that emotions triggered by a particular situation (whether a negotiation or some other incident) can carry over and affect our decisions in subsequent negotiations and other financial situations.

In one study, for example, participants who were induced to feel angry had difficulty accurately assessing their own interests in a subsequent negotiation as compared with those in a neutral state, Harvard Kennedy School professor Jennifer Lerner and her colleagues found. This was true despite the fact that the participants’ anger was unrelated to the negotiation at hand.

In another study, as compared with participants in a neutral state, those induced to feel sad were willing to pay much more to buy an item, apparently due to a desire to enhance their sense of self, Lerner and her coauthors found.

Interestingly, in both studies, participants insisted, incorrectly, that their unrelated emotions (anger or sadness) did not affect their subsequent financial decisions. It seems we are largely unaware when feelings triggered by one situation—so-called incidental emotions—linger and affect our future decisions.

Purchasing agents, sales representatives, lawyers in certain realms, human resource professionals, and real estate agents often move from one negotiation to the next with little or no break.

Wheeling and dealing

Incidental emotions may be particularly relevant to professionals who engage in frequent negotiations with different individuals and organizations.

In certain businesses and professions, negotiators can spend months hammering out a single deal—a labor contract, a merger between two large companies, the settlement of a class-action lawsuit, and so on. During such prolonged negotiations, counterparts can gain valuable information from one another’s emotions: interpreting anger as a sign to go back to the drawing board, irritation as a motivation to speed things along, and cheerfulness as an indication that talks are on the right track, for example.

But in other jobs and industries, it’s more common for negotiators to deal with one counterpart after another— a phenomenon known as sequential negotiations. Purchasing agents, sales representatives, lawyers in certain realms, human resource professionals, and real estate agents often move from one negotiation to the next with little or no break, for example.

How we feel at the end of one negotiation—a concept known as subjective value—will quite naturally trigger emotions that may spill over and affect our subsequent negotiations with other counterparts.

Pride and overconfidence

In a lab experiment and a field experiment, Becker and Curhan tested this spillover effect.

In their lab experiment, the researchers had undergraduate business students play the role of a buyer or seller in a negotiation simulation four times in a row, each time facing a different counterpart. When participants felt bad after a particular negotiation, they tended to perform better on the negotiation that followed, the results showed. The opposite was also true: the better participants felt after a negotiation, the less effectively they performed in a subsequent negotiation.

In addition, positive feelings among male participants tended to lead to a sense of pride, which in turn led
them to perform worse, rather than better, in a subsequent negotiation. This effect wasn’t found for women; some other, unidentified effect must have explained their results. Pride, which tends to be stronger in men,
may have led men to be inappropriately overconfident in their abilities following a negotiation, to their detriment in the next round.

In their field experiment, Becker and Curhan studied the actual negotiations of employees of a U.S. transportation company for lower rates from various fuel suppliers. The results again showed that participants who felt better as a result of one negotiation performed worse in their next negotiation, and vice versa. In addition, for both men and women, positive feelings triggered a sense of pride, which was linked to worse results in a subsequent negotiation.

Managing incidental emotions

Our emotions can carry over from one negotiation to affect the next, often to our detriment, the results of Becker and Curhan’s study suggest.

The following guidelines can help us manage the effects of such incidental emotions on our negotiations:

• Take breaks between negotiations.
  When possible, take time off following a negotiation to let emotions such as pride dissipate, lest they carry over and hinder results in your next negotiation. Moreover, managers should be attuned to the carryover effects of emotion and give their employees flexibility over their negotiation scheduling.
• Pinpoint the emotion’s source.
  Research by Norbert Schwarz (University of Southern California) and Gerald Clore (University of Virginia) has found that labeling the source of an incidental emotion lessens its impact on our judgments and decisions. So if you are feeling buoyed by a negotiation victory, remind yourself that your mood was prompted by your most recent performance and is not necessarily relevant to your next negotiation.
• Strive for a humble mindset.
  Because pride from one negotiation can have unwanted consequences on our next one, Becker and Curhan recommend that we try to foster a humbler mindset after a success by asking ourselves what we would do differently in the next negotiation.

When Alexandra Elbakyan was growing up in Kazakhstan, books, music, and movies were expensive. To access them, she learned how to pirate intellectual property and eventually came to believe that it should be available to all.

After enrolling in graduate school in Russia, Elbakyan began pirating journal articles for herself and other researchers who couldn’t afford them. She amassed so many articles that in 2012, she created Sci-Hub, an online database of pirated scholarly articles. Elbakyan, who studies the history of science at an undisclosed location in Russia, obtains the articles by using library passwords, some of them apparently stolen, that others share with her. Sci-Hub now contains about 50 million stolen scholarly journal articles and is used all over the world by researchers who either can’t or don’t want to pay the fees that academic publishers charge to download the articles.

Netherlands-based Elsevier, one of the world’s biggest scientific publishers, successfully sued Elbakyan for copyright infringement in the United States. She was ordered to pay Elsevier $15 million and shut down Sci-Hub but has refused to abide by the ruling and remains beyond the reach of U.S. law in Russia.

Many consider Elbakyan to be a thief, but she views herself as an activist. “All content should be copied without restriction,” she recently told the Washington Post.

However you view Elbakyan’s actions, it’s clear that they have shined a light on an issue that’s a problem for many researchers and institutions: the high costs of accessing scientific research articles.

When a powerful party is preventing them from meeting their goals, some people give up. Others react in a way that violates the law or their own code of ethics. Still others work doggedly toward creative solutions. The challenge of improving access to academic journal articles worldwide illuminates the ways in which “Davids” can negotiate effectively with “Goliaths”—without resorting to unethical or illegal behavior.

A lopsided model

While newspapers and magazines have struggled to find ways to profit from their content in the Internet era, the small number of academic publishers that produce the thousands of leading peer-reviewed scientific research journals have managed to increase their profits exponentially. The largest journal publishers—including Elsevier, Springer, and Wiley—collectively earned $10 billion in 2015, primarily from research libraries, achieving profit margins of 35% or more, the New York Times reports.

Many researchers, universities, and libraries believe this success comes at their expense. Under the current system, researchers submit their articles to publishers, which enlist other researchers to review and edit the work for free. Publishers take ownership of accepted articles without paying authors for their work. The publishers then sell journal subscriptions to universities and the federal government for steep fees— ranging from $2,000 to $35,000 annually per journal, or millions of dollars for bundled subscriptions, according to the Times. The publishers keep an ironclad paywall in place for most products and grow profits by launching new journals and raising rates. Andreas Degkwitz, the head librarian of Humboldt University in Germany, told Science that about 60% of the library’s total budget is used to pay just three journal publishers—Elsevier, Wiley, and SpringerNature.

Scientists such as Elbakyan whose universities can’t afford such subscriptions often have difficulty legally accessing the research they need to conduct their work. And in nations where scientific research is taxpayer funded, citizens theoretically pay twice to read journal articles: first through their taxes, and a second time when paying publishers’ downloading fees, usually about $35 per article. In response to complaints about high fees, publishers respond that producing top- quality scientific articles is an expensive business.

Early remedies

Universities and libraries have long said they have little leverage in price negotiations with academic-journal publishers. Unwilling to deprive their researchers of the knowledge they need to do their work, institutions have been unable to make a credible threat to walk away from the bargaining table. But they and other groups have been rebelling against the system in other ways.

To begin with, thousands of new so-called open-access research journals have sprung up that follow a different business model. Instead of charging subscribers for content, they charge researchers to publish their papers—about $1,000, in some cases—and then post them for free online. Large academic publishers such as Elsevier have followed suit by launching new open-access journals and charging the authors fees that are about double those charged by start-ups, according to the Post. Yet, most prestigious journals remain behind a paywall.

In 2012, Harvard Library, the largest university library in the world, sent a memo asking the university’s teaching and research staff to submit their manuscripts only to open-access journals and to resign from assisting journals kept behind paywalls, according to the Guardian. Subscription prices from large journal publishers had increased by 145% over six years and were becoming unsustainable, according to the library. But with researchers facing extreme pressure to “publish or perish” in top paywalled journals, the Harvard Library’s requests didn’t seem to gain much traction.

In 2016, then–U.S. president Barack Obama’s Office of Science and Technology began requiring government agencies that provide more than $100 million in research funding to require the final version of the manuscripts they fund to be freely available within a year of publication. Congress has considered passing a similar measure.

Unwilling to deprive their researchers of the knowledge they need to do their work, institutions have been unable to make a credible threat to walk away from the bargaining table.

Banding together

In 2015, more than 150 German libraries, universities, and research institutions united to form Project DEAL, a consortium devoted to negotiating a new business model with academic-journal publishers for all members, Science reports. Rather than buying subscriptions for individual journals, consortium members want to pay publishers an annual fee that covers the publication costs of all papers whose first authors are based at German institutions. This fee should be set by multiplying the number of papers with Germany-based first authors by a reasonable price per paper, they say. Project DEAL members want these papers to be available for free worldwide.

Similar coalitions in the Netherlands, Finland, Austria, and the United Kingdom have made comparable demands of publishers, with limited success. In the Netherlands, Elsevier, the largest of the publishers, agreed to make 30% of Dutch- authored papers available for free online by 2018 in exchange for a significant increase in libraries’ annual subscription fees, according to Science. By comparison, Project DEAL in Germany says it’s determined to hold out for 100%—what it calls “the big flip” from the current model.

Following months of negotiation with the German coalition, publishers SpringerNature and Wiley reportedly are coming around to the new model, though they have yet to agree on a reasonable price per article. Elsevier has proven to be a tougher sell. When a negotiation deadline passed without agreement in January 2017, Elsevier let subscriptions lapse at more than 60 German institutions, though it restored their access a month later, when talks resumed,Science reports.

To prompt Elsevier to accept a “big flip,” several large German research institutions have said they are willing to let their Elsevier subscriptions lapse in December if they don’t reach a deal. They are betting that Elsevier would cave in the face of diminishing profits. The institutions’ researchers could get by with accessing articles through interlibrary loan, directly from authors, or from prepublication article-sharing websites—and, perhaps, from illegal sources such as Sci-Hub.

Dealing ethically with a behemoth

When facing your own personal Goliath, keep these four tips in mind:

1. Draw attention to your cause.
Harvard Library may have gained power in its negotiations with publishers by calling attention to their skyrocketing fees. Criticizing your counterparts publicly is likely to escalate tensions, however, so you should do so only as a last resort.
2. Flip the system
If you think an existing business model puts you at a distinct disadvantage, brainstorm ways to flip it to create a leveler playing field. Then look for ways your counterpart might benefit from the new model.
3. Team up with other weak parties.
You might not have much negotiating leverage on your own, but you may
be able to increase it significantly by forming a coalition with other parties in your situation. Just be careful to avoid breaking antitrust rules and laws when teaming up with competitors.
4. Seek out powerful allies.
Government agencies and officials, advocacy and watchdog groups, and others may have an interest in helping you address a power imbalance. Look around to see who might help, and try to enlist their backing.

We end with a piece of advice for Goliaths: Remember that most negotiators care intensely about getting a fair deal, independent of their objective outcomes. When you’re the more powerful party in a negotiation, you’ll need to attend to those fairness concerns. The other side could rebel—either inside or outside of the law—if you try to take advantage.