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ROSS P BUCKLEYAdversarial Bargaining: TheNeglected Aspect of NegotiationROSS P BUCKLEY *BUCKLEYAdversarial bargaining is often neglected in the contemporary literature of negotiationtheory. Yet it flourishes in commercial transactions and on court house steps. Thisarticle argues that most negotiators do not pursue an exclusively interest-based oradversarial strategy in the one negotiation but rather, that most complex negotiations,for good reasons, commence with an interest-based approach and move to an adversarialmode at some point. The article then analyses ten of the principal rules of adversarialbargaining.Adversarial bargaining neglected?Surely adversarial bargaining is what mostpeople think of when they think of negotiating:haggling over price, getting to the bottom linewhen one dollar more for you is one less forme. It is not neglected in car yards, businesses,or on court house steps. It is, however, neglectedin the literature.In the 1990s, four leading journals of disputeresolution1 published 58 articles on negotiation.Ten of these articles were substantially focusedupon adversarial bargaining and 48 weresubstantially focused upon interest-based orproblem-solving negotiation.2 Most authors write* Professor and Executive Director, Tim Fischer Centre forGlobal Trade and Finance, Bond University. This articlewas written while the author was a Visiting Professorin the Centre for Commercial and Property Law,Queensland University of Technology. The authorthanks the Centre, and QUT, for their support.1Australian Dispute Resolution Journal, Dispute ResolutionJournal, The Negotiation Journal and Ohio State Journal ofDispute Resolution.2This research necessitated numerous subjective decisionsas to the focus of the articles in question; nonetheless thecontrast is so stark that the point is made, even if differentinterpretations could have been put on some articles.MARCH 2001about aspects or variations of interest-based,problem-solving negotiation because this is onefield where the desire to change commonpractice seems to far outweigh the desire tounderstand it. The watershed text, in that regard,is Fisher and Ury s Getting to Yes.3 Before it waspublished in 1981, most books about negotiationargued either for a co-operative approach or a competitive approach .4In bargaining co-operatively, negotiators seekcommon ground. They communicate a sense ofshared interests and values and use reason andlogic to seek co-operation. Their goal is to reacha fair and just agreement.5 They may often makeunilateral concessions to display good faith and345Fisher and Ury, Getting to Yes: Negotiating AgreementWithout Giving In (Boston: Houghton Mifflin Co, 1981).See eg, Williams, Legal Negotiation and Settlement (St Paul,Minn: West Publishing Co, 1983), p 48; Cohen, You CanNegotiate Anything (Lyle Stuart Inc, 1980); Deutsch, TheResolution of Conflict (Yale UP, 1973), p 20; Gordon, LeaderEffectiveness Training (G P Putnam & Sons); Edwards andWhite, The Lawyer as Negotiator (St Paul, Minn: WestPublishing Co, 1977), Ch 3; Karrass, The Negotiating Game(Thomas Y Crowell Publishers, 1970), pp 28-108.Williams, op cit n 4, p 53.181

ADVERSARIAL BARGAINING: THE NEGLECTED ASPECT OF NEGOTIATIONin the belief that this imposes a moral obligationon the other party to reciprocate.6In bargaining competitively, negotiators makehigh initial demands and few and smallconcessions. They use exaggeration, threat andbluff to put pressure on the other side. Theirgoal is to win, both for the substantive outcomeand the intrinsic satisfaction they derive fromwinning.7 Unilateral concessions are viewed asa sign of naïveté and weakness.bargaining, or in their terms principlednegotiation , as an answer to the contest betweenthese two approaches. Principled bargaining waspromoted as the one-size-fits-all approach.Interest-based negotiations of the kindpopularised by Fisher and Ury can berepresented by the first three stages of thefollowing diagram.10Fisher and Ury changed the game and thedebate. They did not discover interest-basedbargaining that honour may go to Mary ParkerFollet writing in 19428 or to even earlier writers however, they did popularise it.Co- operative bargaining shares somecharacteristics with interest-based bargaining.However, the latter is a more structured processthat focuses on the identification of interests, thegeneration of options and the use of objectiveexternal criteria or processes to resolve disputes.Interest-based bargaining counsels againstmaking unilateral concessions and relying ontrust to resolve conflict.9 Competitive bargaining,on the other hand, is basically the same asadversarial bargaining.The literature pre-Getting to Yes was acontinuing debate of the relative virtues of cooperative and competitive bargaining. Fisher andUry presented their model of interest-based6789Osgood, An Alternative to War or Surrender (Urbana, Ill:University of Ill Press, 1962).See Williams, op cit n 4, pp 48-49; Morley andStephenson, The Social Psychology of Bargaining (GeorgeAllen & Unwin, 1977); Siegel and Fouraker, Bargainingand Group Decision Making (McGraw Hill, 1960); Simons,Persuasion, Understanding, Practice and Analysis (1976);Harnett, Cummings and Hammer, Personality,Bargaining Style and Payoff in Bilateral MonopolyBargaining Among European Business Managers (1973)36 Sociometry 325.Mary Parker Follet wrote Dynamic Administration (acollection of papers) in 1942, see Davis, An Interviewwith Mary Parker Follett (1992) 3 ADRJ 7 at 8-9.Fisher and Ury, Getting to Yes: Negotiating AgreementWithout Giving In (2nd ed, New York: Penguin Books,1991), p 21.182The vertical axis represents time, starting at thetop and progressing downwards; the horizontalaxis represents the breadth of potential interests,options and outcomes. The diagram widens inthe first three phases as there will virtuallyalways be more interests than issues, and moreoptions than interests. After the mid-point ispassed, the diagram narrows because options arethen being reality-checked and some discarded.The dotted lines in the final phase represent thatthe final outcome will fall somewhere within therange of acceptable options depending upon thespecific bargaining and choices of the parties.10This is an amplification of the two-triangles diagramwidely used in the early days of mediation courses. Icannot locate the origin of that diagram but expressgratitude to its creator nonetheless: it, and this extensionof it, have proven most helpful in teaching negotiationcourses over the years.THE AUSTRALIAN LAW JOURNAL Volume 75

ROSS P BUCKLEYGetting to Yes is a book about the top threeparts of the diagram: about identifying interests,generating options to address those interests andreaching agreement on which of the options willbe adopted. However, as life teaches us, this isnot the whole story. The fourth part of thediagram, adversarial haggling, is an unavoidableand critical part of most negotiations.Fisher and Ury s model offers, in most types ofnegotiations, major potential improvement inoutcomes over purely adversarial or co-operativebargaining. And, as such, I have no dispute withit. Indeed, if Fisher and Ury had been clearer aboutthe limits of their book they would have avoidedmost of the criticism it has attracted.11 However,they have presented their theories as if they arethe whole story and as if adversarial bargaining issomehow distasteful and can be avoided most ofthe time. It is not, and cannot be.Certainly, adversarial bargaining can be difficult,confronting and unpleasant and an aversion to itis probably the source of the fervour that gripsmany writers and theorists on negotiation.However, we cannot avoid adversarial bargainingif we wish to present a complete picture of thenegotiation process. Most negotiations will endwith some element of haggling over price or termsbecause, while a focus on interests and optionsmay well create value, the parties will still need todivide it between them.12Interestingly, most books on negotiation postGetting to Yes (if accepting adversarial strategiesas legitimate at all) present interest-basedand adversarial strategies as alternatives to be111213Unless, of course, one takes the view that it is simplyimpossible to expect other members of the academy torefrain from sniping at any book that sells so indecentlywell.Goodpaster, A Guide to Negotiation and Mediation(Irvington-on-Hudson, NY: Transnational Publishers Inc,1997), p 102.Inns of Court School of Law, Negotiation (London:Blackstone Press, 1996); see also eg, Susskind andCruikshank, Breaking the Impasse (Basic Books Inc, 1987),pp 15-34; Rubin, Pruitt and Hee Kim, Social Conflict(McGraw-Hill, 1986); Hocker and Wilmot, InterpersonalConflict (Wm C Brown Publishers, 1985).MARCH 2001chosen between and pursued throughout anegotiation.13 Some books include co-operativebargaining as a third potential strategy.14 Ineither case, the strategies are presented as either/or choices not as options for phases of the onenegotiation. This is a false choice. Obviously anegotiator can choose to pursue either strategyand stick with it from the beginning to the endof a particular negotiation. However, the far morecommon practice, particularly in complexcommercial negotiations, is for some variant onan interest-based, problem-solving approach tocharacterise much of the early bargaining andfor an adversarial approach to characterise muchof the concluding stages.15 The theorists aregetting caught up in the purity of their theories.It is usually appropriate to begin with aninterest-based approach (it is always easy tomove a negotiation into adversarial mode, muchharder, though possible, to move it from anadversarial to an interest-based process). Anegotiation that commences and proceeds ininterest-based mode will probably conclude withcompeting claims for a fixed resource. It isusually best to steer the process away from thisend game until interests and options have beenthoroughly canvassed. This is because anexamination of interests and options will oftenresult in an improved outcome for both partiesand because the process of doing so will oftenimprove the relationship between the parties sothat it is able to endure the unavoidabletoughness of adversarial bargaining. However,once the end game is reached, an adversarialstrategy is usually required to achieve the bestresult and an attempt to avoid conflict at thispoint will often lead to a less than optimal result.The neglect of adversarial bargaining in thescholarly literature would be reasonable if it were14Halpern, Negotiating Skills (London: Blackstone Press,1992); Goodpaster, op cit n 12 (each considers threestrategies: competitive, co-operative and principled/problem-solving).15See Buckley, The Applicability of Mediation Skills tothe Creation of Contracts (1992) 3 ADRJ 227 for adescription of the negotiation.183