Critical Decisions in Negotiation: A New Video Resource for Teaching Negotiation

Negotiation teachers have many goals. Improving a student's skills of observation, analysis, and diagnosis, and building his or her capacity to translate theory to practice are often among the most important of these. The Critical Decisions in Negotiation video project seeks to advance these goals. The video features four sets of professionals negotiating a simulation, and then debriefing key parts of the negotiation afterward with Professor Robert Bordone to reveal the thought processes that motivated particular behavioral moves. Bordone provides commentary after each sequence to connect theory to practice. The video project is organized around three broad themes — openings and process, dealing with difficult tactics, and active listening and effective assertion. Key features include a detailed teaching note, unscripted professionals in action, and unvarnished reviews by the negotiators themselves after the fact. The method employed by the Critical Decisions in Negotiation video represents a valuable new pedagogical tool for negotiation instructors and students alike.

As teachers of negotiation, we encounter challenges that faculty in other domains often do not face. Some of this may be of our own doing. Negotiation teachers typically have ambitious goals: we want to impart an understanding of the theoretical frameworks of negotiation; we want to improve students' skills of diagnosis, observation, and self‐reflection; and we also want to help students develop their own behavioral skills — all in the service of making them more effective negotiators in practice. To meet this challenge, current negotiation teaching pedagogy suggests using a multifaceted approach to teaching and learning (Tyler and Cukier 2005). Negotiation classes often deploy a range of learning pedagogies, including lectures on the theoretical concepts, opportunities to engage in simulations and role plays, structured self‐reflection and debriefing of performance, observation and coaching, and facilitated discussions. Each of these helps advance the many goals of theory comprehension, skill acquisition, and self‐reflection.

In our experience, teaching students to understand the theory is much easier than teaching them to translate that theory to practice. Helping students develop new behavioral moves in the heat of the moment and deepen their capacity for self‐diagnosis and reflection is hard work. Teaching about is easier than teaching how. For example, students quickly understand the benefit of probing for underlying interests in order to find opportunities for value creation. Most of these students, however, still struggle with what words to actually say to accomplish this goal. For most of them, applying the theory is not intuitive.

In the Negotiation Workshop at Harvard Law School, we devote considerable resources to helping students bridge the gap between theory and practice. Video‐recorded negotiations are a key component of this strategy. We record students for a portion of their simulated negotiation, and then they review their videos in small groups with an instructor.

We also make considerable use of “fishbowl” negotiations to help students with skill development. “Fishbowl” negotiations are live negotiations conducted in the front of the classroom, which the rest of the class can observe and then comment upon in small segments. These “fishbowls” can feature students, instructors, or a student and an instructor. One instructor typically facilitates the observation by stopping the negotiation at key moments, asking observers for their reactions to certain behavior choices made by the negotiators, and then asking the negotiators themselves to explain the thinking behind their choices. This allows the instructor to isolate particular negotiation moves and help students examine their effectiveness.

We and our students find these exercises to be valuable teaching tools. First, they link theory and skills by demonstrating a wide array of possible moves and behaviors. Second, these moves and behaviors are analyzed in many different ways because different observers will notice different “data” or pieces of information in a single move, which makes for a very rich discussion.

But we also conduct a variety of workshops and trainings off‐campus where we do not have the level of resources — support staff, equipment, trained instructors, or time — necessary to replicate fully the video review sessions and detailed analytical discussions of the fishbowl sessions. In our conversations with experienced colleagues — both fellow negotiation faculty, as well as full‐time negotiation trainers and consultants — we have heard similar complaints. Moreover, in our conversations with law school colleagues who have considered adding negotiation to their teaching program, we have learned that some, particularly those with less negotiation teaching experience, hesitate to take on such a course because they are often intimidated by the prospect of participating in or facilitating live unscripted negotiation sessions in front of an audience.

One tool that we often use when we teach outside of the law school classroom is video clips — excerpts from popular movies and television shows or videos specifically produced for negotiation teaching. These clips provide useful opportunities to observe people in the middle of negotiations or conflict situations, but they also have limitations. For example, scenes from film and television may be overly dramatic and unrealistic. Similarly, many negotiation videos can seem “canned” or fake because they use professional actors or instructors reading from a scripted dialogue. In addition, many negotiation videos lack a structured analysis of the moves and behaviors of the negotiators, and most are of such low production quality as to seem dated and dull to students accustomed to higher quality video in the age of YouTube.

The worst shortcoming of current negotiation teaching videos, however, is their failure to capture the thoughts of the negotiators themselves — a key component of our in‐class video reviews and fishbowl negotiations. These perspectives are essential for a thorough understanding of negotiation behaviors and their impact. A particular move can best be evaluated only when we have an understanding of what the negotiator intended to achieve when she or he made that move. Without speaking with the negotiators themselves, students and other observers are left to guess at why the negotiator acted or reacted as she or he did.

In 2010, aware of the need for a new, unscripted, high‐quality negotiation teaching video that would include insights from the negotiators, Robert Bordone (coauthor of this article) began work on the Critical Decisions in Negotiation (Critical Decisions) project.¹ The project, which took three years to complete, was funded in part by WilmerHale, a prominent international law firm based in Boston and Washington, DC. During the project, Bordone collaborated with many people and worked particularly closely with Toby Berkman, a former associate of the Harvard Negotiation and Mediation Clinical Program, and Chad Carr, coauthor of this article and a current clinical instructor and lecturer on law at Harvard Law School. The result is a three‐hour video featuring four pairs of professionals negotiating the terms of a global access and licensing provision. The video includes a structured debriefing of the critical moments of the negotiations with Bordone and the negotiators. Bordone then provides additional analysis and commentary, weaving in theory, reflection, and application.

The Critical Decisions project took inspiration from a video entitled Negotiation of a Commercial Lease, which was produced by the Program on Negotiation at Harvard Law School in the 1980s (Program on Negotiation 1991). We and many others have used that video with great success in our own teaching, but it was due for an update partially because of its poor video quality and partially because of the homogeneity of the negotiators it depicts. (They are all white men.) That video featured two pairs of real estate professionals negotiating the “Discount Marketplace and Hawkins Development” simulation (Bacow 1991). The video showed the opening minutes of two separate negotiations, allowing students to discuss and compare the strategies and approaches taken by each negotiator. Our goal with the new video was to offer students that same opportunity, but to also provide more structure to the observation, provide more robust data for students to evaluate negotiation effectiveness, and give them advice that incorporates current negotiation theory.

The Critical Decisions in Negotiation video is unscripted and depicts real attorneys and contracting professionals at work. It seeks to examine the purposes and impact of their negotiation behavioral choices, and also seeks to ground that analysis in established negotiation theory. It can be used by instructors in its entirety or in discrete parts to amplify particular lessons or to demonstrate various approaches and skills.

The Critical Decisions in Negotiation video is based on the “Iqbal's Big Venture” case simulation (Bordone and Berkman 2012). It depicts a negotiation between an attorney for the founder of a biotechnology start‐up company and an attorney from the office of technology development at a major research university. The two sides negotiate the terms of a license for a technology owned by the university that could lead to the creation of new drugs. The only issue that the negotiation addresses is global access and enforcement rights.² The university insists that the license include strong “global access” language so that poor people in the developing world can have affordable access to any drugs created through the use of the technology. The start‐up founder maintains that such provisions will limit his ability to attract the investors needed to assure the success of his new venture.

Our goal was to capture raw negotiation footage that would be as close as possible to a real‐world negotiation, while maintaining the benefit of having a consistent context for comparative purposes. To do this, we filmed sixteen professionals, eight pairs, negotiating the case. Nearly all who participated, at the time of the filming, were partners in the Boston offices of two major law firms, WilmerHale or Choate Hall and Stewart LLP, or senior staff of Research Ventures and Licensing, a division of Partners HealthCare that coordinates industrial relationships and intellectual property management across Partners and its member hospitals in Boston.

We gave participants minimal guidance about how to negotiate the case; each received only the factual information of the case through the confidential role instructions. In a pre‐negotiation letter,³ we instructed participants to “act as if you were actually negotiating this case in the real world.” We also encouraged them to spend about an hour thinking about their goals for the negotiation and a strategy for achieving those goals. In a final verbal communication before their video‐recording began, we told them to do the best they could for their client. Each pair negotiated the case uninterrupted for sixty to ninety minutes while being recorded by three high‐definition cameras.

Following these negotiations, we culled the video recordings to identify some of the key moments from each of those negotiations. We identified four of the eight negotiating pairs whose negotiations provided the richest opportunities for analysis. Specifically, we sought to identify the four negotiations that had the most clearly articulated pivotal or turning point moments that students could analyze and that might lend themselves to multiple and differing interpretations. We invited those participant negotiators back to review with Bordone on camera their critical decision moments and to describe the thinking behind each of their moves. Before the review session, we informed the negotiators of the exact clips that we would be asking them about and had invited them to review those on their own in advance. With the negotiations and reviews in place, we filmed Bordone individually explaining key negotiation concepts and linking them to the negotiators’ behaviors.

The Critical Decisions video thus comprises three types of scenes. First, some scenes show the negotiations themselves. We selected scenes that feature one or more of the critical decision points in the negotiation. Bordone's lead‐ins help to focus viewers on key behaviors to look for, providing a lens through which to view and analyze the data. Subsequent follow‐ups by Bordone help to crystallize and clarify the negotiation concepts.

Second, some scenes show Bordone and the negotiators reviewing the original negotiation scenes and describing their thoughts and reactions during the negotiation, as well as their reactions upon seeing themselves on screen. In particular, Bordone asks about the negotiator's purpose in choosing a particular behavior and inquires into the impact on the other negotiator. Together, the negotiators and Bordone “unpack” the selected interaction and identify the strengths and shortcomings of various moves and responses. These segments provide students the opportunity to thoroughly consider the chosen behaviors at each critical decision point.

Finally, in the third type of scene, Bordone appears on screen alone to summarize key negotiation concepts and explain how they apply both to the particular clip as well as to negotiation generally. He presents the key frameworks that can be used to determine an effective approach for each of the critical decision points in the negotiation. In addition, he often models effective use of the frameworks by providing examples of what a negotiator could have said in order to be more effective in a particular moment. Only this commentary section of the video was scripted, and it is designed primarily for those who choose to show major parts of the video in its entirety and who would benefit from commentary linking behaviors and analysis to the broader theory. We expect more experienced negotiation instructors to make less frequent use of these portions of the video, in favor of providing their own commentary. However, we imagine these segments to be helpful to newer instructors or to those who view the entire video on their own outside of the classroom context.

To make the video usable throughout a typical negotiation course — and to capture some of the most critical decision moments in negotiation — we have divided the video into three thematic units:

• “openings and process,”

• “dealing with difficult tactics,” and

• “active listening and effective assertion.”

We have sought to identify particular moments in a negotiation when a negotiator's choice of action or response could have a substantial impact on the overall trajectory of the negotiation. In each unit, we analyze how a negotiator can make decisions to foster a problem‐solving, interest‐based negotiation that will set the stage for creating long‐term value for both parties.

The “openings and process” unit focuses on the very first moves at the negotiating table. The actions of negotiators in the first moments of the negotiation usually set the tone for the rest of the interaction (Wheeler 2004). Negotiators begin to make judgments about each other's trustworthiness and competence and adjust their strategies appropriately. This unit examines the impact of various openings. Viewers can compare and contrast the opening lines from two different negotiations. In one instance, for example, Mark opens his negotiation with Rosemary using a positional bargaining stance:

In another negotiation, Christian, playing the same role as Mark, opens with an invitation that has a more interest‐based and collaborative approach:

In the review, Mark and Christian explain the purpose behind each of their approaches, and Rosemary and Joe (their respective counterparts) share their reactions to these openings. Joe's response emphasizes the effectiveness of Christian's opening tone. He explains, “It would be interesting if he had started off differently how I would have responded because I might not have responded the same way. I might have become more adversarial if he had come in with ‘no, this is your problem … we have the advantage.’ ”

Surprisingly, virtually none of the pairs spent any time determining a process for approaching the negotiation at the outset of the negotiation. The process discussions for all four negotiator pairs combined added up to less than a minute in length. The video pieces together these brief exchanges to emphasize the lack of attention paid to process. Two of these cursory process discussions are included here.

At best, some pairs identified and confirmed the focus of the negotiation, as shown in the exchange between Wendell and Belinda.

Because all four exchanges lack a robust process discussion, Bordone outlines key process discussion topics that negotiators should consider covering at the outset of the negotiation: the issues to be negotiated, the goal of the meeting and desired products, the time available and how to use it, and how to sequence the discussion.

The second unit, “dealing with difficult tactics,” focuses on dealing with challenging negotiation behaviors at the table. In our experience, students almost always question whether a problem‐solving negotiation strategy will work outside of the classroom context when their counterparts may not have been trained in the same methods. They are unsure how to respond to negotiators who appear to be using hard bargaining or other challenging behaviors. They fear that persisting with a problem‐solving strategy will leave themselves open to exploitation. The unit shows clips of negotiators using a variety of difficult tactics, including stonewalling, making take‐it‐or‐leave‐it offers, and forcing someone to bid against himself or herself. Bordone provides detailed advice on how to respond effectively to such tactics, and highlights clips in which negotiators are successful in employing those responses.

One of the key lessons in the difficult tactics unit is that a negotiator should always take her or his counterpart at face value, and not assume that he or she is deliberately trying to be difficult. This point is illustrated during the review of a clip showing an exchange between Mark and Rosemary. In the clip, Mark asks a question with a sarcastic tone, and Rosemary becomes visibly frustrated. Moments later, she responds in kind with a sarcastic‐toned question of her own. In the review, Mark spoke about his intentions, noting that he was “feeling … on the defensive a lot here.” He felt that Rosemary's implicit message was that “ ‘the university has this irrational and unreasonable restrictive policy. We want out of it. How are we going to do this?' ” He noted that he might have responded differently if Rosemary had taken a more collaborative approach. This response highlights both the danger and the opportunity present in the face of what appear to be difficult tactics from a counterpart. The danger is that responding in kind can close off avenues for value creation and possibly move the negotiation toward impasse. A skilled negotiator, however, can avoid jumping to conclusions and seize the opportunity to refocus the negotiation onto the joint problem at hand.

The final unit is “active listening and effective assertion.” We often refer to active listening as the stealth weapon of a great negotiator. Active listening has two key benefits for negotiators. First, it allows a negotiator to learn about the underlying interests of his or her counterpart in order to craft a more persuasive proposition. Second, active listening addresses the universal human desire to feel heard. Meeting this interest is often a prerequisite to problem solving. The unit focuses on the external skills of active listening, exploring when and how to employ them most effectively.

In a review with Bordone, David, one of the negotiators, perfectly illustrates the value of active listening, and explains how it could have helped him and his counterpart, Seema, overcome their impasse. In one scene, he and Seema go around in circles about a particular issue, with each repeating themselves to exasperation, but no progress is made. After watching the scene in the review, David said to Seema:

His explanation highlights the magnitude of the impact of meeting an individual's interest in being heard. That failure in this instance resulted in frustration on both sides and ultimately impasse in the negotiation.

The second half of the unit is devoted to effective assertion. Active listening sets the stage for assertion by bringing interests to light and opening up space in the negotiation to be heard. The unit examines techniques for assertion that allow a negotiator to express his or her interests clearly in a way that creates opportunities for value creation.

The video is intended to be useful for teaching in a wide variety of contexts. As mentioned above, we think it is particularly helpful for teachers who may not have teaching assistants or other colleagues with whom they can demonstrate certain behaviors, or for teachers who may be new to teaching or who may need to convince their students that the skills they are teaching them in the classroom can be successfully deployed by “real” professionals in the real world. The video should also be helpful to organizations that conduct their own internal negotiation training for employees.

Thanks to clearly marked chapter headings and an extended teaching note, the video can be used flexibly by instructors. For example, it can function on its own as a complete instructional resource that can be viewed straight through or in segments that correspond to various parts of the class. We find that the most effective use of the video so far has been to use it to launch a guided, interactive discussion among course participants. The following are several ways in which we have used the video to help students develop a better understanding of negotiation theory as it is applied to practice.

First, the video allows students to engage in direct observation of a negotiation between actual lawyers. That context provides an opportunity for students to practice identifying particular negotiation moves and behaviors, and connect them to the theoretical frameworks. In our teaching and training, we have often used popular movie clips for this purpose. While these clips can be both fun and instructional, they often lack a realistic portrayal of what students are likely to encounter in their professional practice. In the Critical Decisions in Negotiation video, the negotiation is completely unscripted and the negotiators display a variety of behaviors that range in their effectiveness. Seeing and responding to a realistic legal negotiation helps prepare students to apply the skills to their own professional lives (Lande et al. 2012).

Observing negotiators doing things well is one of the most effective ways to learn negotiation skills (Tyler and Cukier 2005). In parts of the video, Bordone highlights which of the negotiator's moves were particularly effective. We often show these scenes a second time to allow students to really focus on the identified behavior. Bordone also notes less effective behaviors and then suggests other possible approaches — using the actual words that the negotiators could have used — to be more effective. These segments function as models for students to emulate when they engage in their own negotiation simulations.

Second, the video can be used to provide students an opportunity to practice using the observed skills. After students identify an ineffective behavior by a negotiator, the instructor can encourage the students to say the words that they would have used in that situation to be more effective. Attempting to model more effective responses in the classroom can be an engaging and interactive exercise, and can improve skill development (Lewicki 1986). Students can test out their skills and get immediate feedback from peers and the instructor. Inviting students to think through their own negotiation choices while watching the video allows them to deploy the skill more naturally when faced with similar situations in real life.

Third, the video demonstrates how the three positions — the perspectives available during any negotiation or interaction — can be used to evaluate and improve negotiation effectiveness (Fisher and Sharp 1998). The first position is an individual's own perspective from his or her own vantage point. The second position is the perspective of the other person or persons in the negotiation. The third position is the perspective of a neutral third party who is observing the negotiation. How would someone who is uninvolved or observing the negotiation from a distance describe the situation? In the video, the clips of the feedback sessions with the negotiators provide the perspectives of the first and second positions. Bordone draws out these perspectives by asking one negotiator “what was your purpose?” (the first position), and then asking the other negotiator what the impact was on him or her (the second position). The third position is that of Bordone or anyone who is viewing the video. Everyone viewing the video has an outsider's perspective on what the negotiation looks like and what appears to be happening from a more neutral standpoint.

Examining all three positions is a highly useful way of evaluating strategies and choices in negotiation. Students need to understand why certain choices were made and what impact they had. Their observations alone are insufficient. When we use the video, we ask students to hypothesize about the first and second positions. For example, to hypothesize about the first position, we ask “What might Christian's purpose be in this moment?” Similarly, to explore the possible perspective of the second position, we ask “What impact do you think this has on Joe?” We encourage students to back up their hypotheses with specific observations from the video, and then follow that discussion by showing the review in which Christian and Joe answer those questions themselves.

Perspective‐taking is essential to improving negotiation outcomes (Galinsky et al. 2008). In our experience, students (especially law students) typically enter class focused almost entirely on the first and third positions; they see the world through their own eyes, or they see what is objectively reasonable. They overlook the second position, which is critical in negotiation because it is the perspective of the person whose behavior a negotiator seeks to influence. Asking students what it might feel like to be in that person's shoes encourages this perspective‐taking. The review sessions with the negotiators reinforce powerfully the importance of perspective‐taking by forcing course participants to question some of their own assumptions.

Fourth, the Critical Decisions in Negotiation video's use of four different pairs of people negotiating the same issues allows participants to compare and contrast negotiation strategies and approaches. As discussed earlier, the section on openings presents the opening lines from two different negotiations. Mark opens his negotiation with Rosemary using a positional bargaining stance, while Christian opens with an invitation to use a more interest‐based approach. After watching these two scenes, the instructor can lead a facilitated discussion about the advantages and disadvantages of each of the approaches. Students can then learn the impact of those strategy choices by watching reviews with the participants and observing the subsequent progress of the negotiation. This allows students to test out their predictions and assumptions, and refine their thinking about negotiation theory.

Finally, we have found that using the video in class with law students often boosts their own self‐confidence as negotiators. Seeing law firm partners and well‐seasoned negotiating professionals struggle to negotiate effectively makes students realize how much they have learned and how many skills they have already developed. This is particularly true when the video is shown to students who have already negotiated the “Iqbal's Big Venture” simulation before watching the video.

We often compare being an outstanding negotiator to being an outstanding batter in baseball. As those familiar with baseball know, some of the best hitters have a batting average of .350 or .400, meaning that they are getting on base by hitting the ball only 35 to 40 percent of the time. Seeing some of the most successful negotiators deploy behaviors that are less than exemplary helps students realize that self‐awareness, not perfection, is the sine qua non of the great negotiator. The video reminds students of the negotiating strengths that they already possess and reassures them by showing that skill development is difficult even for experienced professionals.

We have just begun to explore the range of ways that Critical Decisions in Negotiation can be used in our teaching and training. Our list of uses here is by no means exhaustive. We continue to experiment with different approaches, depending on the audience and our specific purposes. Our early experiences suggest that the video helps students translate the theory of negotiation into the skills of negotiation. It is particularly useful, we believe, when instructors are unable to show live demonstrations, or may want their students to hone skills of observation and analysis. We hope that the video can serve as a resource for other negotiation teaching professionals. We welcome feedback and look forward to learning more about how people are using the video in their classrooms and trainings.