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As bargaining parties move into the "value claiming" Distributive Stage and work to divide up the surplus they created during the Information Stage, they should continue to appreciate the effective way in which questions can be used to move the parties toward mutually acceptable agreements. When they are exploring several different issues, one side might ask the persons on the other side if they would be willing to give up Item 2 if they could obtain Item 1. This would enable the participants to move together, instead of having one side make a unilateral concession that might not be reciprocated by their counterparts. Even when negotiators are dealing with distributive issues, they should not hesitate to ask each other which terms are valued more. Such inquiries make it easier for them to determine the items that should be exchanged in the most efficient manner.


As negotiating parties achieve definitive agreements, they often conclude their interactions without moving into the "value maximizing" Cooperative Stage. During both the Information and Distributive Stages, most negotiators have over-stated and under-stated the degree to which they value the various items being exchanged. Such "puffing" and "embellishment" are an inherent part of almost all bargaining encounters. As a result of such disingenuous behavior, it is not uncommon for parties to reach accords that fail to divide the relevant items in the most efficient manner. Once it is clear that an accord has been achieved, one side should not hesitate to ask their counterparts if they would consider several alternatives this side believes would expand the surplus and enable the parties to simultaneously improve their respective situations. This is where the negotiators should look for terms they obtained which their counterparts may value more highly and for terms their counterparts obtained that they actually value more. By exchanging these items, both sides will benefit.


It should thus be apparent that questions play a critical role during all of the substantive stages of bargaining interactions. First, to determine what and why particular items are desired, then to enable the participants to divide the terms they have discovered, and finally to enable them to achieve mutually efficient agreements which maximize the joint returns generated.



Charles B. Craver Photo
Charles B. Craver is the Freda H. Alverson Professor of Law, George Washington University. Over the past thirty-five years, he has taught negotiation skills to over 90,000 lawyers and business persons throughout the United States, and in Canada, Mexico, Puerto Rico, England, Germany, Turkey, and China. He is the author of Effective Legal Negotiation and Settlement(7th ed. 2012 LEXIS); Skills & Values: Legal Negotiating(2nd ed. 2012 LEXIS); and The Intelligent Negotiator (2002 Prima/Crown). He is the coauthor of Skills & Values: Alternative Dispute Resolution (2013 LEXIS), Alternative Dispute Resolution: The Advocate's Perspective (4th ed. 2011 LEXIS), and Legal Negotiating (2007 West). He can be reached at ccraver@law.gwu.edu


The Questioning Process During Bargaining Interactions By Charles B. Craver




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Copyright © 2014 Charles B. Craver
Copyright ©   2014  The Negotiator Magazine
The Negotiator Magazine  November 2014