Watercoloring in Thunderdome: Tips to Aid Creativity in Negotiations

Posted By Ian F. Hlatky, Dec 7, 2012

Many in the legal profession once considered negotiations a blood sport—an event in which two parties pitted their steely resolve and iron will against each other in a fight to the death over a fixed prize. This approach emphasized competition over creativity and produced one winner and one loser. But often sacrificed was the chance to advance both parties’ interests.

In recent years, books such as Getting to Yes have offered an alternative approach. Instead of zero sum and scorched earth tactics, integrativebargaining seeks to find ways to expand the proverbial pie and arrive at more optimal outcomes. But this approach requires significant creativity and problem-solving skills. Offered here are a few tip to aid that creativity.

Know Your Default Negotiation Style

First, know yourself. Research has shown that negotiators tend to, by default, follow one of five models of negotiation: Haggling, Cost-Benefit, Game Playing, Partnership, and Problem Solving. Knowing which model best describes you can help free you from the determinism of your default approach. Identifying which style defines your negotiation “opponent” is also important.

“Hagglers” are the classic zero-sum, fixed pie types. You are probably a haggler if, after negotiating, nobody likes you. “Cost-Benefit” adherents concern themselves mainly with maximizing returns and generating mathematical models to explain even the most unquantifiable situations (to the great frustration of the rest of humanity). “Game Playing” negotiators think of negotiations a battle of the minds to be won by the best strategist. If you imagine Hagglers’ dog-eat-dog approach, only with more refined dogs, you are pretty much there. “Partnership” negotiators see negotiations as an opportunity to work with the other side to generate mutually beneficial, long-term solutions. But a win-win result can sometimes frustrate clients, especially if their half of the “win” is less than they feel they could have attained using a less warm and fuzzy approach. Last, “Problem Solving” negotiators treat negotiations as puzzles to be solved. While perhaps the most creative, this approach can be too intellectualized and risk overlooking important human factors like personality conflicts and emotions.

Learn to Avoid and These Creativity Killers

Much has also been written about errors in thinking that can trap unwary lawyers. But a few lesser-known traps have particular implications for negotiation creativity.

The inert knowledge problem describes the phenomena in which people are unable to access information they need to solve a problem—even though they readily possess that information. Unfortunately for human beings (and a large number of negotiators are human beings—if only in biology), we are surprisingly bad at applying lessons learned in one situation to another situation where the superficial features differ. To work around this, negotiators should create problem-solving schemas based upon multiple instantiations of a solution type. By examining different cases employing the same problem-solving approach and comparing and contrasting them, negotiators can create problem-solving schemas that are unhampered by superficial features and are more easily retrievable.

But experience can have a dark side too. Functional fixedness and the ‘set effect’ demonstrate this. Together, these terms describe the phenomena whereby which individuals’ past experiences with problem solving actually prevent them from finding new and/or more efficient strategies to solve new problems. To avoid this, negotiators should jettison mechanized thought, question tried-and-true methods, and always endeavor to approach each negotiations problem with a fresh and creative perspective.

Adopt a Creative Mindset 

What may affect creativity the most is the way we think about negotiations. Negotiators should never forget to remind themselves to be creative—to generate many solutions, to be flexible enough to change approaches, and to not be afraid to generate unique, off beat solutions. This can be enhanced by remembering that negotiations can and should be enjoyable—not just for the extrinsic reward of succeeding for a client, but for the process itself (this called an autotelic experience, or “flow”—look it up!). Adopting and maintaining the proper mindset is crucial to negotiating integratively.

Integrative negotiation demands creativity. To aid with this, negotiators should know their default negotiation style, avoid traps that can hamper creativity, and adopt and maintain a creative mindset. By doing these simple things negotiators can help improve their chances of finding unique solutions during negotiations.

For more information on this topic as well fun games that will make you feel creatively challenged, see Leigh L. Thompson, Creativity and Problem Solving in Negotiations, in The Mind and Heart of the Negotiator 183-217 (Prentice Hall ed., 4th ed. 2008).