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Negotiation scholars and teachers often talk about negotiation skills through the metaphor of tools in the toolbox. This article focuses on the fact that negotiation scholarship primarily studies the hammer, the skill of assertiveness in negotiation. In fact, the majority of empirical negotiation studies take this even further—studying only the hammer and imagining only a single opportunity to hit the nail on the head. Based on those studies, we make conclusions that if one chooses not to use the hammer at all or does not hold it as well as another, one is not a good builder. And negotiation scholars’ advice is also too often focused only on this hammer—how to swing it harder, how to position your hands, the angle of the swing, and so forth. We see this as well in the study of gender differences in negotiation where the vast majority of articles examining gender and negotiation focus on assertiveness—the hammer—and how women need to pick it up, swing harder, or hold it differently. Women’s supposed lack of assertiveness has been used to explain the pay gap between the salaries of women and men along with a whole host of other inequities. This story falls short primarily because our research falls short. And when our research falls short—when we are only researching and emphasizing a part of the skills that are needed to be effective—this does a disservice to all negotiators. First, researchers focus on assertiveness, a typically masculine trait, and only one of several important negotiation skills. Therefore, we assume that both men and women need only to master that skill to the detriment of the mastery of any other negotiation skills. Second, assertiveness has become the only regularly tested negotiation skill as it is easily quantified. By failing to study the impact of any other skills—including skills that women might be better at than men—the practice to theory to practice cycle is hijacked by this narrow focus. Third, we tend to study negotiation in one-shot interactions with distributive outcomes. Far less often do we study the possibility of integrative outcomes. Even when we set up studies that focus on repeated interactions, they are often limited to prisoner’s dilemma or dictator game scenarios—highly stylized and unrealistic structures. What this means is that while women are not recognized for the skills at which they might be inherently better, it also means that we are failing men by not highlighting opportunities for growth and improvement. This article attempts to fill in the picture of the skills necessary for effective negotiation by examining the existing negotiation and gender literature discussing traits and skills related to negotiation and the gender literature of those traits outside of the negotiation context. Importantly, this article outlines what we know—and what is still missing—in terms of research on negotiation skills and research on gender differences in these skills. Understanding this gap is the first step toward recognizing what we should be studying and testing in the future. This article will examine five negotiation skills—social intuition, empathy, ethicality, flexibility, and assertiveness—each of which has been shown to make negotiators more effective and add importantly to each negotiator’s toolbox. Each section will outline how the skill is generally defined in negotiation literature, what gender differences exist or research has been done under each category, and then where future research might be needed. Particularly, this article will note how much more research is needed in all of these other skills to help negotiators learn the specific behaviors that can increase effectiveness. Finally, the article will circle back to assess what we have learned about using a gender lens to study negotiation and the importance of broadening the skill base for all negotiators.

The impact of the Singapore Convention might affect both state and companies’ behaviors even more than encouraging mediation. We have had for a long time the phrase “bargaining in the shadow of the law,” and then more recently, in particular when we look at international investment, it is bargaining in the shadow of international arbitration. We know that a dispute could end up in arbitration and therefore impact behaviors before that. I want us to think about what bargaining might look like in the shadow of mediation.

Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be likeable, it is clear that not negotiating has long-term detrimental effects. The third myth, based on the limited assumption that a good negotiator must be assertive, is that women cannot negotiate as well as men. However, the most effective negotiators are not just assertive, but also empathetic, flexible, socially intuitive, and ethical. Women can and do possess these negotiation skills. This article concludes by proposing an action plan which provides advice on how women can become more effective negotiators and identifies structural changes that might encourage negotiation and reduce the gender pay gap.

At the end of Professor Menkel-Meadow’s landmark article, she notes “the attraction of the problem-solving approach to negotiations is that it returns the solution of the problem to the client and forces the lawyer to perform her essential role in the legal system—that of solving problems” (p. 841). While most view this article as a call to change the mindset of lawyers to engage in the problem-solving method of negotiation, I want to focus on its underlying message—a lawyer’s essential role includes counseling about more than the law. In fact, as this article was being written in the early 1980s, the Kutak Commission added Model Rule 2.1, authorizing attorneys to counsel clients about the consequences of their actions beyond the law. Professor Menkel-Meadow gives us the road map to do that. Moreover, Professor Menkel-Meadow’s explanation is even more compelling, because it is based on a shift in mindset and is the first to utilize interdisciplinary literature....

Most negotiation professors tend to focus on teaching problem-solving techniques to achieve long term goals, build a relationship with the counterpart, and maintain a positive reputation. How do these assumptions get taught (and challenged) by a president who appears to negotiate with exactly the opposite strategy? By urging students to understand Trump’s audience (his base), his time frame (short), and his preferred reputation (bully), we can then discuss the impact of Trump’s negotiation strategies and who exactly will be paying the price for his brinkmanship and bullying reputation.

Plea bargaining is the primary, and unavoidable, method for resolving the vast majority of criminal cases in the United States. As more attention is paid to reform and changes in the criminal legal system, plea bargaining has also come into the spotlight. Yet we actually know very little about what happens during that process—a potentially complex negotiation with multiple parties that can, at different times, include prosecutors, defense counsel, judges, defendants, and victims. Using negotiation theory as a framework, we analyze why more information about the process itself can improve this crucial component of the system. More information—more data—would permit informed judicial oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients and the state, and increase the legitimacy of the bargaining between parties where one side tends to have far more resources and power. Without increased transparency, many of the players in the criminal legal system are just bargaining in the dark.

This article is based on a provocative conversation between Andrea Kupfer Schneider, Noam Ebner, and David Matz as they drove to the airport following the University of Missouri’s symposium, Moving Negotiation Theory From the Tower of Babel Toward a World of Mutual Understanding. After a while, John Lande metaphorically joined their quest to find a good definition of negotiation. They considered examples of interactions with deans, judges, bank officers, grocers, drivers, terrorists, and muggers, among others, to try to identify critical elements of negotiation. For example, can the interaction be called a negotiation, if one party holds all the cards? Is it a negotiation if only one party is interested in negotiating? This article should stimulate readers’ thinking about this deceptively challenging question, and is particularly appropriate for use in negotiation courses.

Our research suggests that a true norm of ethical negotiation behavior exists within the legal profession. This conclusion is tempered, however, with the knowledge that a large minority of our research respondents — at times approaching one-third of them — engaged in unethical and even fraudulent behavior. Additionally, the survey respondents were not saddled with the pressures that practicing attorneys typically confront (pressures likely to make people behave less, rather than more, ethically). In an attempt to understand the reasons for such a high frequency of unethical negotiation, we have identified three major contributing factors: too many lawyers have only a superficial understanding of rules that are more complicated than they appear; lawyers frequently take their “zealous advocate” role too far, thereby placing client loyalty above other important values such as respect for truth and justice; and the practice of law and the people who are drawn to it are highly competitive. To address these factors, we suggest approaching the problem from several different angles. In the classroom, we suggest a focus on the relevant legal standards, including a focus on the often misunderstood law of fraudulent misrepresentations. Because many students fail to appreciate the differences between “ethical” behavior, the floor of socially acceptable conduct, and the expectations that others have for how they will be treated, we also suggest that lawyer training programs focus on the important role that personal relationships and one's reputation play in the legal profession, and how falling short in these areas can decrease one's negotiation effectiveness. For the profession itself, we also suggest clarifying the attorney rules of conduct and provide a number of tactics and strategies to defend against lying and deception during negotiation. Finally, we recognize there are certain psychological factors at play that can cause people to engage in behavior inconsistent with their personal sense of ethics. We believe the only way to avoid these lapses is to integrate conscious and reflective practices that can bring ethical concerns to the forefront of lawyers' decision-making and thought processes.

Can one person change the course of your life? For many people who knew Roger Fisher, myself included, that is exactly what happened. This essay in honor of Roger Fisher outlines key lessons taught to me as his student, research assistant, co-author, and friend.

Where do good research projects come from? And does being angry about something lead to good legal research? This helpful flow chart walks you through a number of steps to be sure that your anger, frustration, or concern is channeled into successful projects. Is your anger enough to sustain you, can it be researched, does it fit with what you are doing, and what will be your product? Use this flow chart to keep you on track!

Research evidence across a number of disciplines and fields has shown that women can encounter both social and financial backlash when they behave assertively, for example, by asking for resources at the bargaining table. But this backlash appears to be most evident when a gender stereotype that prescribes communal, nurturing behavior by women is activated. In situations in which this female stereotype is suppressed, backlash against assertive female behavior is attenuated. We review several contexts in which stereotypic expectations of females are more dormant or where assertive behavior by females can be seen as normative. We conclude with prescriptions from this research that suggest how women might attenuate backlash at the bargaining table and with ideas about how to teach these issues of gender and backlash to student populations in order to make students, both male and female, more aware of their own inclination to backlash and how to rectify such inequities from both sides of the bargaining table.

Assuming a comfort level by lawyers and companies with conflict resolution processes, five top conflict resolution authorities have joined together to discuss the next step. They believe that sophisticated ADR practice will be characterized by anticipatory dispute prevention

How should lawyers negotiate? This article outlines an empirical study of how lawyers rate each other in negotiation behaviors. After discussing what skills are needed for effective negotiation behavior, we then look more closely at how family lawyers in particular are negotiating. Examining some troubling data, we find that family lawyers appear to be more adversarial and less problem solving than other types of practitioners. We conclude by discussing why this might be so and what the family law bar and family law professors should be doing in the future to address this problem.

Andrea Kupfer Schneider, of Milwaukee, and Christopher Honeyman, of Madison, Wis., preview their comprehensive new anthology on reaching agreement, “The Negotiator's Fieldbook,” which will be published this month by the American Bar Association's Section of Dispute Resolution.

There is often an inconsistency in conflict resolution teaching between what we are trying to impart—that process matters deeply and that we should be proactive about enabling effective and appropriate process—and how class is often conducted. This short article offers some reflections on the sources of that inconsistency, and some suggestions for corrective action.

If forced to be concise and pithy, what would a room full of negotiation scholars cook up? The compilation of recipes was in response to the request for each person’s own definition of negotiation effectiveness put in the form of a recipe. Not only is this interesting in terms of seeing the similarities and differences among this leading and diverse group of scholars, the exercise itself is one that can easily be replicated in negotiation or dispute resolution classes. It forces each participant to think about (a) ingredients; (b) amount of each; and (c) the order in which each skill is utilized. Have fun cooking up your own favorite dish!

This report to the ABA Section on Dispute Resolution outlines the results of a survey to the membership concerning the use of neutrals in both mediation and arbitration on behalf of the Women in Dispute Resolution Committee (WIDR) of the Section of Dispute Resolution. The goals of the WIDR Committee was to change how neutral selection occurs in disputes, to increase the number of women who serve as neutrals, and to ensure that women and minorities were proportionally represented as neutrals. The first step, before suggesting changes, was to understand the current situation in the world of dispute resolution. In fall 2012, the Section of Dispute Resolution surveyed the lawyers belonging to the section to determine how mediators and arbitrators are selected in legal cases and the types of cases being resolved through the many available dispute resolution processes. Specifically, the survey was designed to examine who is being selected as a neutral, by whom, using what process, and for what types of cases. This report explains the methodology of the survey, the demographics of the respondents and neutrals involved in particular cases, and, most importantly, the information about neutral selection.This survey provides clear data on women serving in neutral capacities and demonstrates several different potential avenues of change. Three preliminary conclusions drawn from this data are — first, the type and subject matter of the dispute clearly impacts neutral selection. As detailed above, certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations.Our recommendations included that clients and lawyers could be encouraged to think more broadly about who they use as neutrals. Particularly in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women. Provider organizations should be commended for improved gender balance in mediation. Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. In arbitration, provider organizations (a) should also adopt the assumption that multi-arbitrator panels should include one woman when they are appointing the panel and (b) should have a higher percentage of women on their list so that these lists can do more than reflect the current situation. Additional efforts in certain practice areas (commercial, construction, etc.) are likely warranted with a targeted program to identify and encourage women and minorities to serve as neutrals.

This exercise is a new tool, the Dynamic Negotiating Approach Diagnostic (DYNAD), to measure responses to conflict. The DYNAD asks participants to assess themselves both at the start of a conflict and then again after the conflict becomes more difficult. Many negotiators find that they shift - they change their styles in one way or another - to adjust to the rising temperature of the conflict. Awareness of this negotiation barometer can provide crucial lessons to negotiation students.

One of the most difficult elements in any negotiation is responding effectively to the other side when it has said or done something that makes you uncomfortable. Sometimes a negotiator will deliberately use comments such as those listed above as a form of gamesmanship. At other times, such comments just display ignorance. Nonetheless, perceived insults, biased comments, or questionable personal statements can and do snarl many negotiations, leaving you wondering about the other side's motives and intentions. How does a good negotiator handle this king of problem? Retaliation? Letting it go? Responding Coolly? In the heat of the moment when you are feeling flustered, it is often difficult to give the measured response you would like. All of us have had the experience of thinking of the "best line" or comment hours after the conversation has ended. But in the same way that hitting the brakes can be learned response to something unexpected in a negotiation. Negotiators need to use a three-stage process for responding to offensive comments. First, you should check your own assumptions and be sure that you are not projecting them onto the other person. Second, you can try to understand their motivation in making such a comment. And third, you choose a response to their comment with your goals in mind. The questions "Why?" can be used at every stage of this process, and is particularly important when you choose to engage the other side. By applying a structure to those comments and questions that make us most uncomfortable, we can be more effective negotiators.

Different areas of study have developed “serious games”, videogames with a message beyond pure entertainment, to test the application of differing frameworks to particular problems. The video game PeaceMaker, created by ImpactGames, simulates the Palestinian-Israeli conflict and allows the participants to take on the role of either the Israeli Prime Minister or the Palestinian President. This simulation can be used as a teaching mechanism that allows students to gain hands-on experience in applying several dispute resolution concepts as they work toward achieving peace and winning the game. This article discusses the use of serious gaming in education and specifically the use of PeaceMaker to study theories and practices of conflict resolution. The article describes the PeaceMaker’s overall structure, function, and applicability in the classroom, as well as the theories and concepts of international conflict resolution that can be taught through its use.