There is a whole lot of empirical research that explains why so many negotiations fail to yield optimal results -- and that teaches us ways to improve the odds that we will do better. On the hunch that most busy lawyers don't spend much time reading social science journals, I thought I'd summarize some of the key points.
First, how bad is the problem? One key source of poor negotiating is overconfidence -- and it is ubiquitous. Studies show that overconfidence intensifies with the complexity and level of uncertainty in the task and is particularly severe among litigators. When cases go to trial after a 998 offer is rejected, 86 percent of the time a party fares worse by ploughing forward, according to a study by Randal Kiser. And study after study shows that negotiators often fail to identify trades that would leave both parties better off. In fact, about half the time negotiators even fail to discover that they share a common goal.
Originally published in the Daily Journal on May 10, 2013.
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