Gini Nelson’s Engaging Conflicts

Time was when a Formica plaque could often be found on the desk of a certain type of negotiator. It said “Yea, when I walk through the Valley of the Shadow of Death I shall fear no evil, for I am the meanest son of a bitch in the valley.” Is it really to your advantage to have a reputation as one of the junkyard dogs of negotiation? The authors approach the question from three very different starting points. Tinsley summarizes the research on reputation in controlled settings. Schneider turns to real-life reputations of lawyers in action. Finally, Cambria shows how the life-and-death negotiations which characterize the work of the New York Police Department’s Hostage Negotiation Team have led to a new understanding of reputation. This chapter should be read in conjunction with Lewicki on trust.

As the authors say, “reputation is too important to be left to chance.” A person’s reputation influences a negotiation. Reputation implies an expectation that a person will be and behave in a predictable way. With that expectation, our unconscious mind tends to fill in the gaps in our knowledge with traits that are clustered with the reputed trait (the “halo” or “horns” effect), and also tends to discount information which does not fit the expectation. In other words, our expectations affect our perception. The good news is that once a good reputation is established it is relatively easy to maintain. The bad news is that once a good reputation is tarnished, it is very difficult to rebuild.

Experimental studies document that a reputation for an ability to craft mutually beneficial deals (integrative reputation) results in better outcomes, and a reputation for an ability to extract deep concessions (distributive reputation) results in worse outcomes. This is true even if only one of the negotiators has an integrative reputation, as if the distributive reputation negotiator is trying to respond in kind to the apparent good faith of the integrative negotiator.

What about outside the experimental lab? In one study, over 700 attorneys in Chicago and Milwaukee (out of 2,500) answered mailed questionnaires rating their counterpart attorneys on reputation and effectiveness. When the results were categorized into 4 attorney styles (true problem-solving, cautious problem-solving, ethical adversarial, and unethical adversarial), the results included:

… 72% of those attorneys described as true problem-solvers were perceived as effective by their peers (and only 1% of these attorneys were seen as ineffective). In contrast, only 3% of unethical adversarial attorneys were perceived as effective, while 75% of unethical adversarial attorneys were perceived as ineffective. (Being ethical adversarial only helped somewhat–only 16% were perceived as effective, with 40% perceived as ineffective.

The smaller the market, the more important a true problem-solving reputation in terms of being deemed effective, and the most detrimental the adversarial reputation. It is important to note that, in the larger market (Chicago), attorneys with adversarial reputations were not downgraded in effectiveness as much as they were in the smaller market (Milwaukee)– 41% of Chicago adversarial attorneys were deemed effective vs. 34% of adversarial attorneys in Milwaukee. The larger the city, the more tolerated adversarial approaches — although they are still deemed less effective overall than problem-solving approaches.

But note this: family law practice attorneys placed 5th in 7 practice areas for having reputations as true problem-solvers, and had the highest percentage of attorneys with reputations as unethically adversarial. The authors suggest one hypothesis to explain this, i.e., that “some percentage of clients in the family law area pay for, expect and reward adversarial behavior even more than in other practice areas.”

[I think there are other contributing factors, but this is surely one of them. For example, I’m running a series over at my New Mexico-focused law practice blog (www.HandlingConflict.com) critiquing a horrid book I found in a thrift store once, called “Divorce War!” complete with 50 strategies. The lawyer who wrote it occasionally acknowledges that some of the strategies would be considered unethical by many attorneys and might even be illegal, but urges the necessity of this approach. I’m taking each strategy and posting briefly in a Divorce Series I call “50 Ways How NOT to Leave Your Lover”. Here’s today’s post (#3).]

The article ends with a description of the techniques used by NYPD hostage negotiators to establish trust — in effect, their reputation with the hostage taker when viewing each discrete step of the negotiation as a repeat-play situation. As the article states:

A negotiator’s behavior at the beginning of the negotiation has critical implications for a hostage taker’s responses to the negotiator at later stages of the negotiation. Indeed, a rule of thumb stipulates that the first 15-45 minutes (of what might be a protracted, multi-day negotiation) are the most critical. In this early window a negotiator must try to begin establishing his or her reputation for trustworthiness, problem-solving, compassion, and cooperation ….. People are inclined to manage psychological distress by believing in the credibility of those upon whom they must depend to get them through their misfortune. If a crisis negotiator demonstrates a strong and sincere desire to resolve the crisis in a compassionate and cooperative way, then the chances of successful resolution are enhanced.

One clear message from this article is the value and necessity of being the leader in demonstrating true problem-solving behavior whether in negotiations or mediations. Your clients in distress want to believe in you, and your opposing counsel (if there is one) may be willing to rise to the occasion to meet you.
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Maria Volpe, Ph.D. is Professor of Sociology, Director of the Dispute Resolution Program at John Jay College of Criminal Justice — City University of New York, and Convener of the CUNY Dispute Resolution Consortium. Dr. Volpe has lectured, researched and written extensively about dispute resolution processes; mediates in educational settings; conducts skills training; facilitates intergroup sessions; administers grant funded projects; serves on editorial boards; and is a Past-President of the Society of Professionals in Dispute Resolution. Her current research focuses on police use of mediation, dispute resolution in educational settings, ADR Responses to 9/11, and barriers to minority participation in dispute resolution. Maria received her Ph.D. from New York University, where she was an NIMH Fellow.

Jack J. Cambria is the Commanding Officer of the New York City Police Department’s Hostage Negotiation Team. His duties consists of coordinating the efforts of 100 Negotiators, who respond throughout the city to all hostage and related situations. He is responsible for the training and certification of new negotiators and the retraining of current negotiators, and conducts training for many outside law enforcement agencies. He worked with the Emergency Service Unit for the three months following the attack on the World Trade Center, to assists in the rescue and then recovery efforts at Ground Zero.

Hugh McGowan, retired in 2001 from the NYPD after 35 years of service. In his last 13 years with the Department, Lt. McGowan was Commanding Officer and Chief Negotiator of the Hostage Negotiation Team (HNT). He personally responded to and coordinated negotiations at over 1500 hostage, barricade and suicide incidents. In addition to selecting and training negotiators for the NYPD, he has instructed crisis negotiators from other city, state and Federal agencies and lectured throughout the United States and Australia. Previously, Hugh spent 5 years with the NYPD’S Emergency Service Unity. He served 6 years as a Detective Sergeant in the Bomb Squad and is a veteran of the U.S. Army. McGowan has a Ph.D. in Criminal Justice from the CUNY Graduate School.

Christopher Honeyman is a consultant, mediator and arbitrator based in Madison, Wisconsin and Washington, DC. He has advised firms, nonprofits, government agencies, universities and foundations throughout the U.S. and in other countries on dispute resolution infrastructure issues, quality control and ethics. His specialty is managing interdisciplinary teams of experts to address complex conflict management problems, and he has led a fifteen-year series of large-scale conflict management research and development projects funded by the Hewlett Foundation. He has served as mediator, arbitrator or in other neutral roles in more than 2000 cases since the 1970’s. Chris is also author or co-author of more than 50 articles and book chapters; many have been republished electronically at www.convenor.com.

Catherine H. Tinsley is an Associate Professor at the McDonough School of Business at Georgetown University, and is Executive Director of the Georgetown University Women’s Leadership Initiative. Professor Tinsley is a faculty affiliate at the Center for Peace and Securities Studies, a Zaeslin fellow at the college of Law and Economics, University of Basel, and a CPMR fellow for NASA. She studies how factors such as culture, reputations, and negotiator mobility influence negotiations, as well as how near-miss events bias people’s decisions under risk. She has published in numerous peer-reviewed journals and has been on the editorial board of The Academy of Management Journal, International Negotiations: A Journal of Theory and Practice, and International Journal of Conflict Management.

Andrea Kupfer Schneider is a Professor of Law at Marquette University Law School. She has published numerous articles on negotiation and international law, and is a co-author of the recently published Negotiation: Processes for Problem-Solving, Mediation: Practice, Policy & Ethics, and Dispute Resolution: Beyond the Adversarial Model with Carrie Menkel-Meadow, Lela Love & Jean Sternlight. Her previous books include Coping with International Conflict and Beyond Machiavelli: Tools for Coping with Conflict, both with Roger Fisher. Andrea is also the author of Creating the Musee d’Orsay: The Politics of Culture in France. She received her A.B. from Princeton and her J.D. from Harvard Law School. She also received a Diploma from the Academy of European Law in Florence, Italy.