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<xTITLE>Instead of Eliminating Negotiation, How About Eliminating Backlash?</xTITLE>

Instead of Eliminating Negotiation, How About Eliminating Backlash?

by Andrea Schneider
May 2015


Andrea  Schneider

I am grateful for Michael’s push in his blog post last week to think more about job negotiation, particularly after Reddit announced that they will no longer negotiate starting salaries (in order to avoid gender bias). The Program on Negotiation followed up Ellen Pao’s gambit noting three problems with her approach: (1) women aren’t the problem (it’s the backlash and societal expectations that are the problem)l; (2) negotiation isn’t a competition; and (3) forbidding negotiations could backfire (people will go elsewhere for their jobs.)

I have focused mostly on problem number one–the perceptions versus the reality of how women negotiate. In multiple studies of both women lawyers negotiating on their clients behalf and of women law students negotiating their own salary, there are not gender differences. Let me say that again. I have not found salary differences between male and female law graduates–the differences are between those who negotiate and those who don’t! And, when looking at women lawyers, there are few stylistic differences as well. To the extent that there is a problem, it is the backlash that occurs from others when women negotiate on their own behalf–this likeability v. competence choice. The story at Nazareth College is one such example (and I’ve written with others on that debacle here.)

Instead of eliminating negotiation, let’s eliminate the backlash. My co-authors and I have outlined some specific strategies for women to take in order to minimize this backlash (article here) and I’d like for those of us with whom women negotiate to also do our part and celebrate rather than punish this assertiveness (which, by the way, we all want these women to have on behalf of their clients!)

I think Michael’s example from the Chronicle of Higher Education is dealing with problem number (2) from above–that we view negotiation as a win-lose when, in fact, it is the opportunity to continue to build the long-term relationship with the place that is hiring you. The story from the Chronicle is a great example:

Officials at Princeton University wanted to recruit Albert Einstein to join their Institute for Advanced Study. To begin the negotiation process, Princeton wrote to Einstein in Austria to ask how much he would need to accept the job offer. Einstein wrote back: “$3,000, unless you think I could get by on less.”

Did Princeton match his request or try to talk him down to $2,800? No, they offered $15,000 – which I suspect was a pretty handsome sum back in the 1930’s. Officials there knew he would figure out the salary structure soon enough, so rather than create anger and resentment, they decided to pay him competitively to create both trust and commitment. Imagine beginning the hiring process by offering a fair and competitive deal!

So my additional advice is that, until the backlash is eliminated, we also need our institutions to be fair. Salaries need to be reviewed regularly to double-check that we are treating all faculty fairly based on accomplishment and not just personal assertiveness. A hard lesson for me as well–my first raise at Marquette was from my previous dean, Howard Eisenberg, who told me that he gave me a raise after a male colleague (hired a year later) had in fact negotiated his salary higher than me…and now Howard was raising my salary to be at least as high as his. I always appreciated Howard’s strong sense of fairness and the difficult lesson that I learned about not negotiating on my own behalf. I have been sure to do so ever since. Of course, my current dean (the male colleague hired a year later) might regret that sometimes!


Before Andrea Kupfer Schneider even knew or understood the words negotiation or mediation, she figured a way to outsource her chores to her younger brother by paying him a part of her allowance.  Not a new trick, but noteworthy that she hit upon the idea naturally. Such is the somewhat tainted beginnings of what would become a notable career as a professor and prolific writer in the disciplines of legal practice, deal making and conflict management. Only many years later, having obtained her A.B. degree from the Woodrow Wilson School of International Affairs and Public Policy at Princeton University, and her J.D. cum laude from Harvard Law School, and studying with Roger Fisher and others associated with the Negotiation Project, did her interest and passion for understanding how people deal with difficult issues and make decisions begin to gel. And afterwards, she enhanced the breadth of her perspective with study and a postgraduate Diploma from the Academy of European Law in Florence, Italy. She joined the faculty of Marquette University Law School in 1996, where she continues to teach ADR, Negotiation, Ethics, and International Conflict Resolution and is the Director of the nationally ranked Dispute Resolution Program.

Andrea’s writing reflects an integrated perspective of the importance of negotiation and mediation that is not bounded to one or a few particular disciplines.  She is either an author, co-author, co-editor, or contributor to   numerous books, texts and articles in the field of dispute resolution, including: the forthcoming Negotiation Essentials for Lawyers (ABA 2019) building on the two volume Negotiator’s Desk Reference and, earlier, The Negotiator's Fieldbook all with Christopher Honeyman; Negotiation: Processes For Problem-Solving and Mediation: Practice, Policy & Ethics, and Dispute Resolution: Beyond The Adversarial Model with Carrie Menkel-Meadow, Lela Love & Jean Sternlight; and co-author of two books with Roger Fisher, Beyond Machiavelli: Tools For Coping With Conflict and Coping With International Conflict. And beyond practice theory, strategies and techniques, she also explored the frequently overlooked presence of negotiative process in every part of our society; her book, Creating The Musee d’Orsay:  The Politics of Culture in France, explores the place of negotiation and politics in art and architecture, and her most recent book, Smart & Savvy: Negotiation Strategies in Academia, written with her father David Kupfer, a researcher and emeritus professor of psychiatry, as the title suggests, explores the necessity for negotiation in an arena that is not  easily or openly admitting of the need for such skills.  Andrea has also published numerous articles on negotiation, ethics, pedagogy, gender and international conflict and currently serves as the co-chair of the editorial board of the ABA Dispute Resolution Magazine.    She is a founding editor of Indisputably, the blog for ADR law faculty and the 2017 recipient of the ABA Section of Dispute Resolution Award for Outstanding Scholarly Work, among other awards. All of this is capped off with her 2016 TEDx talk entitled Women Don’t Negotiate and Other Similar Nonsense.

Her range and scope of interest in how negotiative work can be done more effectively not only in legal practice but in the surrounding politics and culture of our society makes her perspective all the more valuable.

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Additional articles by Andrea Schneider