When the equality rule fails: The case of four shells

If I’ve learned one thing as a negotiation professor, it’s that the fairest and most obvious ways of dividing resources often seem unfair and non-obvious to the parties involved. Consider the equality rule. What could be fairer than a 50-50 split? Unfortunately, the parties embroiled in a negotiation don’t always see it that way. So we need an alternative approach to make life negotiable.

To illustrate the dilemma and a set of potential solutions, let me recount a story.

My family and I recently visited the beach. One morning, I took a long run and decided to pick up some cool shells for my five- and three-year-old daughters. At first, I found three shells, thinking that more than sufficient. But then I remembered that three shells allocated to two young ladies would elicit open warfare. So I searched high and low for a fourth, finding an amazing orange one that I expected to settle the matter. Two shells for each daughter. Equality rule!

But I couldn’t have been more wrong. And I should’ve seen it coming: Both daughters regarded the orange shell as way cooler than the others, so both daughters clamored for it.

The equality rule, so obvious in theory, completely failed in practice. And what to do then? I have to admit, I didn’t immediately know, as I was shell-shocked at this incomprehensible failure of the obvious. With reflection though, I came to see that the situation actually presented many different solutions:

  • Flip a coin: I could flip to determine the lucky recipient of the orange shell, give that daughter one more, and give the other daughter the remaining two. Problem is, someone would be incredibly dissatisfied with the fickle hand of fate.
  • Share the orange shell: If the equality rule didn’t work, maybe a quasi-communist rule would. We could all agree to share the orange shell, which is great but would bring all the baggage of common property, even while leaving three shells to divide among two people.
  • Search for another orange shell: Perhaps the ideal option, this one came with an obvious problem: I’ve never seen a shell quite like that. That’s why everyone liked it. So it wasn’t going to work.
  • Return the orange shell to its marine home and find a fourth: While this would’ve technically solved the problem, any parent can tell you that it would’ve elicited far bigger problems.
  • Let the daughters sort it out: They need to learn that life’s negotiable after all, so why not let them figure out a solution of their own? I have to admit that I considered this option carefully, but I thought it might be better to guide them toward a solution.
  • Three-for-one trade: I could give one daughter the orange shell and the other daughter all three of the more pedestrian shells. That seemed promising, but they flatly rejected it. Three pedestrian shells apparently did not compare to a glorious orange one.
  • Figure it out later: Having ruled out all the other obvious solutions, I could think of only one more at the time. Why not wait until the initial allure of the orange shell had worn off a bit? Then maybe everyone’s rationality would return, making the sort-it-out or three-for-one solutions more feasible. And that’s essentially what I did, hoping for a three-for-one. Turns out, the problem got a whole lot easier when someone mentioned the candy store, and everyone forgot the shells.

So what’s the point of all this? First, that even the simplest and least controversial of situations can generate unexpected conflicts and the need for negotiation. Second, that the equality rule can easily fall flat, and we have to be flexible enough to abandon it. Finally, that the key to any negotiation really comes down a combination of creativity and patience. Once the negotiator engages their creativity and indulges their patience long enough to generate some options, a workable solution usually presents itself. Combine a little creativity and patience, and life’s a beach!

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The benefits of impending impasses

Ever since Getting to Yes, negotiators everywhere have concluded—rightly based on the title—that getting to yes is the goal of every negotiation. And ever since I’ve been writing about negotiation, I’ve tried to convince negotiators otherwise. For example, I’ve said here and here that getting to no is an acceptable and even a preferable outcome in negotiations. But I’ve previously focused on the benefits of impasses themselves. Let me here expound on the benefits of impending impasses, arguing that even the threat of a stalemate can make life negotiable.

My 12 years of researching and teaching negotiation have often surfaced three benefits of impending impasses. They fundamentally change:

  1. How the negotiators talk to each other: Prior to an impending impasse, negotiators often talk to each other combatively, seeing who can push who off the precipice first. With an impasse impending, though, the negotiators commonly realize that this strategy hasn’t worked very well. More importantly, they realize that their next best alternative is becoming a lot more real—that they might just have to settle for a suboptimal plan B. This realization commonly motivates negotiators to strike a more congenial tone.
  2. What the negotiators are talking about: Prior to an impending impasse, negotiators are commonly fighting about quantitative issues like money. With an impasse impending, negotiators commonly realize that they need to talk about something else. In particular, they often realize they need to take up issues that less adversarial and potentially beneficial to both—which often amount to qualitative issues. I’ve seen it in my negotiation classes many times: Megotiators locked in a bitter debate on price arrive at a stalemate, only to realize that a consideration of the qualitative issues is the only way to avoid a complete meltdown.
  3. Who the negotiators are talking to: Though it’s less common in my negotiation classes, seeing as I assign my students to negotiate with specific partners, impending impasses in real life often inform negotiators that they need to talk to someone else. In real life, this often happens in conversations with front-line customer service representatives, who are not commonly empowered to do what you want, or maybe anything at all. An impending impasse is productive, as it convinces you and sometimes even them that another party is needed.

So here you see that even impending impasses are productive. Bottom line: Embrace rather than avoid disagreements! At least in negotiations, they are often the only thing that will eventually get you to yes.

Rules versus negotiations

We all know that “rules are meant to be broken.” But what does that mean? And is it more than a meaningless cliché? By considering the meaning of the phrase, I think you’ll see that it can actually make life more negotiable.

To start, consider what rules actually do: Fundamentally, they regulate everyone’s behavior. Consider some common rules:

  • “All sales final.”
  • “11 am checkout time.”
  • “Wire transfers incur a $15 fee.”

Rules like these keep our behavior in line, preventing gratuitous returns, over-extended stays and, frivolous wire transfers. And they do so remarkably well, sending crystal-clear signals about what we can do and not do, seemingly applying the same fair standard to everyone, and coordinating our actions efficiently, without a lot of wasted time discussing. To see for yourself, just imagine the chaos if everyone could request their own checkout time. The clarity, fairness, and efficiency of rules mean they often redound to the benefit of society.

But that doesn’t mean they redound to benefit of ourselves. On the contrary, I’d imagine you’ve at least occasionally found rules like the above inflexible, if not downright arbitrary and silly. Right? I mean, does an 11:10 departure really put hotel operations into crisis mode?

Put differently, society may benefit from a proliferation of rules, but we could often benefit ourselves by breaking them—i.e., by adopting an alternative and more flexible mode of behavioral regulation: negotiations. A quick story to illustrate:

My older daughter recently had a swim lesson at 9 am, and my younger daughter and I were hoping to do some family swim in the same pool at the same time. Unfortunately, the “ZMCA” informed us of a rule: the non-lesson lanes were reserved for lap-swimming until 10 (at which point the older daughter’s lesson would be over). “If no one is using the lap lanes,” I asked the lifeguard politely, “is there any chance my (cute little, swimsuit-clad 3-year-old) daughter and I might use them to splash around?” “No problem,” she said, much to her credit.

Now the rules were the rules: No family swim till 10. But that was an inflexible, arbitrary, and silly rule in light of the complete absence of lap swimmers. In contrast, negotiating allowed the lifeguard and me to collectively and flexibly adjust to the situation in a well-reasoned and reasonable way. I would argue that many of us, in many such situations, would be happier by becoming less beholden to the rules and more beholden to negotiations.

Of course, in the interest of fairness and balance, a society full of rule-breakers would be nothing short of unbearable. Nothing would ever get done and no one would ever know what was happening, as everyone would constantly try to get everything done their way. And inevitably, the savvy negotiators would benefit at the expense of less-savvy and more obedient. That would not be socially desirable at all.

So I’m certainly not saying we should do away with the rules. That too would be silly. I’m simply saying that most of us, faced with a stunning disappointment like the sudden inability to swim, could afford to take one step away from the rules and one step in the direction of negotiation. Give it a try, and I’ll bet your life becomes more negotiable!

Bluffs versus lies: The line between persuasion and deception in negotiation

Where’s the line between bluffing and lying, persuasion and deception, salesmanship and unethical behavior? Negotiation scholars (myself included) have not often answered that question, largely because we focus on what negotiators do instead of what they should do. So far be it from me to answer conclusively here.

Nevertheless, a recent experience got me thinking about the topic and gave me some ideas about the factors that might at least enter into a discussion of where the line falls. So let me recount the experience and associated factors in hopes of making the broader discussion negotiable.

Some college friends and I recently took an annual guys trip, this year to Banff. Somewhere up in the Rockies, far from civilization and farther from cell phone service, we noticed the service engine light illuminated. Then, somewhere farther into the Rockies, we noticed that the fuel gauge hadn’t budged from full despite several hundred miles of driving. “Uh oh.” we thought. “What if the car’s broken or about to run out of gas up in the mountains?” And those thoughts caused some distress, interfering with our full enjoyment of Mother Nature’s majesty.

Long story short, the car didn’t break, and we didn’t run out of gas. We filled it up eventually, then monitored the engine sounds and gas gauge judiciously for the remainder of the trip. Finally, on our way to the airport, we decided to ask the rental car company (and let’s call them Nifty) for a discount. The question was how, and the discussion surfaced various tactics that may bring the line between persuasion and deception into sharper relief:

  1. Objective facts versus subjective reactions: There was a discussion about claiming that we broke down in the Rockies and had to somehow summon a tow truck. There was also a discussion about saying nothing of the sort but focusing on the distress caused by the fact we might have had to do so. The latter is probably more defensible.
  2. Breaks with reality versus extensions of reality: There was a discussion about claiming that we hadn’t had cell service ever since the event (which we did a couple hours later). There was also a discussion about claiming that we hadn’t had cell service until getting closer to the airport (which we were, a couple hours later). The latter is probably more defensible.
  3. Concrete versus ambiguous claims: There was a discussion about claiming that we often travel to Alberta and consider renting from that particular Nifty (a concrete and untrue claim). There was also a discussion about claiming that each of is a “road warrior” who travels to various locations with Nifty branches often (an ambiguous and broadly accurate statement). The latter is probably more defensible.
  4. Verbs versus adjectives: There was a discussion about saying that we ran out of gas in the mountains, the operative verb being “ran out.” There was also a discussion about describing the event with colorful adjectives (my friend ultimately chose “horrific”). The latter is probably more defensible.
  5. Commission versus omission: There was a discussion about arguing strenuously that the service engine light and fuel gauge were related, when we suspected the former reflected an overdue oil change. There was also a discussion about describing both symptoms and letting Nifty draw their own conclusions, none of us being auto mechanics. The latter is probably more defensible.

Again, I’m not here to offer concrete answers to tough ethical quandaries, and maybe you disagree with my assessments. But I hope this story and my thoughts at least help to bring some structure to your own thinking, as you grapple with the ethical quandaries in your own lives and negotiations.

Assurances from an adult: A stopgap strategy for negotiating with kids

I’ve written often about the importance of trust in negotiations. Unfortunately, little children don’t always display an abundance of it—for example, when a sibling or friend wants to play with their preferred toy. To make the lack of trust negotiable, we need something more. Luckily, there’s a device that can help at least on occasion: assurances from an adult.

Consider the following three examples from my own household:

  1. Whenever my younger daughter is playing with something and I ask her to do something else like brushing her teeth, she reliably responds: “But someone will take it!” And, with that prospect looming, good luck getting the teeth brushed. Indeed, the teeth might have remained forever coated in plaque had I not discovered a way of offering an assurance—and bear with me because it sounds stupid: “hawk eyes.” I offer to watch her toy with my very own “hawk eyes,” at which point I dramatically widen my eyes and focus them on the toy in the manner of a deadly serious hawk. Somehow, it seems to work.
  2. The same daughter, while dilly-dallying at the end of a restaurant meal that lasted 12 times longer than any dinner should, expressed disdain when we unilaterally decided to box up her food. “But someone else will eat it!” she insisted. I should’ve seen that coming. While the hawk eyes might have worked in this case too, I decided to try something new: borrow her crayon and write her initials on the to-go box, such that no one else would even dare to dip their paws in her mac ‘n cheese. It calmed her down, eventually.
  3. Finally, my older daughter sometimes worries when leaving for school or summer camp that the younger one will play with and proceed to lose or warp her puzzle pieces. It’s only when I personally promise to preside over the puzzle, placing responsibility for the pieces squarely on my own person, that she musters the will to leave.

And so, when trust is lacking, assurances can offer a powerful stopgap—in the case of toys and food and puzzles but really in any case when a kid distrusts someone else’s intentions. Of course, none of this is to undercut the importance of trust itself; assurances offer a supplement rather than a substitute. But it’s a supplement that may well prevent WWIII.

The unreliability of our gut: Intuitions in negotiation

The recent summit between President Trump and Kim Jong Un has brought the issue of intuition in negotiation to the fore. The North Korean dictator reportedly spent years planning for such a meeting, trusting little to his gut and everything to his analysis and preparation. President Trump, in contrast, is widely known to rely on his gut, for example by saying that he would simply intuit whether a deal with Kim was possible within the first minute.

Given these two divergent approaches, each with its own appeal, it’s probably worth considering the reliability of our intuitions in negotiations. Unfortunately, I’m here to suggest that they are not very reliable at all.

In the spirit of making life (if not world events) negotiable, consider the following five ways that our intuitions can fail us. Our intuitions often tell us…

  1. To avoid making the first offer. Seems intuitive to let the other party move first. That way, we can learn about their preferences and maybe get a great deal. Right? Well, often wrong. As I’ve suggested often before, if we do that, we miss the golden opportunity to focus the other party’s attention on our own goals and desires, making us counteroffers very much in line with our own thinking. Instead, we end up making offers very much in line with theirs.
  2. To deal with one issue at a time. Seems intuitive to agree on each issue in turn, and probably the easiest first. Right? Typically wrong again. If we do that, we treat each each issue as a competitive fight, losing the opportunity to link and trade issues. Accordingly, we leave ourselves with a tremendous problem when we come to the truly contentious issues, typically at the end.
  3. That if I want something, you don’t. Seems intuitive that two negotiators want two opposite things. Right? Wrong more often than you’d think. People do want the opposite of some things, typically money or other quantitative issues. But, as I’ve suggested often before, they often want the same thing on qualitative issues—or at least care less about some qualitative issues than others, paving the way for tradeoffs. Intuition fails us again, precluding the possibility of a win-win.
  4. To focus on our bottom line. Seems intuitive to focus on our bottom line, and especially whether the deal under discussion is better than said line. Right? Wrong or at least woefully incomplete. If we focus exclusively on our bottom line, chances are that we’ll settle for something just better than that line, which is often not very good at all. Instead, we need to focus on our target, only coming back to our bottom line when we need to, at the end.
  5. That everyone negotiates pretty in much the same way. Seems intuitive that everybody around the world pretty much thinks about and approaches negotiations the same that way we do. Right? No, totally wrong. Mountains of evidence now indicate that negotiators from different cultures very markedly in their strategies, interests, and the ethical or legal standards they bring to the table. Intuition fails us again, and this time with a bang.

So you see that, appealing as our gut may be, it’s not particularly reliable in negotiations. And now that we all understand as much, maybe we can collectively convince our political leaders.

Many negotiations in a Mexican restaurant

It never fails to amaze me how many of our daily interactions involve negotiation. Such is the point of this blog! But a recent trip to a Mexican restaurant really drove home the point, so I thought I’d relay it in the spirit of making life negotiable.

Consider the following five negotiations, all from a single Mexican dinner:

  1. With a busy host: On our way into the restaurant, I saw a sign offering free bowling coupons to patrons. But I saw no bowling coupons upon entry. So I had to negotiate with the host by asking where I could find the elusive coupons. And the harried host looked none too pleased to track them down. But eventually, we got them. And this illustrates the principle: if you want something, ask for it!
  2. With a busy waiter: In the process of scarfing down her chips, my younger daughter seemed to get a crumb stuck in her throat. It was nothing major, but she did feel uncomfortable. So I had to flag down the first waiter I saw for some water. Unfortunately, he was carrying seven margaritas at the time. And he looked none too pleased at my interruption. But he brought the water, and pronto, when I explained. This illustrates the principle: don’t back down from your most important needs.
  3. With my older daughter: My older daughter, during the chip incident, had gone to the bathroom with mommy. That left daddy to order the drink I thought she’d like – a delicious cup of apple juice. But inevitably, daddy was wrong. What she wanted was pink lemonade. Of course! So I decided to suggest a contingency contract: If you’re still thirsty after the ginormous apple juice, I’ll buy you a lemonade. (Inevitably, she wasn’t.)
  4. With both daughters: Both daughters like to put 12 shakes of salt on each chip. Unfortunately, that’s a ticket to the cardiologist. So I had to negotiate over the salt, specifically by promising to dispense a moderate amount of salt over the entire chip basket if they would promise to drop the salt shaker. This illustrates the topic of concessions: I was willing to make a small concession in service of a greater good (my daughters’ long-term health and wellbeing).
  5. With my wife: I wanted a second margarita, as I usually do. My wife didn’t want her first, as she usually doesn’t. But I forgot my wife’s preferences and started to order my second. Luckily, she interrupted my order by offering hers, thereby illustrating an integrative solution: she saved us $15, and I got entire margarita minus one sip.

Through these somewhat silly and mundane examples, I hope you see how common negotiations can be. While few of our meals involve five negotiations, most of our lives involve negotiation in some way or another. So here’s to making life negotiable!