Abstract: The proposed organizational structure of this inventory is based on the working assumptions that game playing behavior is an integral part of all negotiative processes regardless of forum or context, and that each of the five common negotiative approaches have characteristic gaming strategies and devices associated with them.
The works of Shakespeare are proof that ‘the truest poetry is the most feigning.’ He distinguishes between lies told merely to contradict the truth, and “a lie that cancels the antagonism” and opens the possibility of new worlds. The trick of a good lie is not so much to gain advantage but to muddy the line between what people believe is true and false.
—Louis Hyde, Trickster Makes This World, 1998
In “Machiavelli’s Place At the Table,” Part 1 of this series, of articles on game playing in negotiation, the evolutionary purpose necessity and purpose game playing in negotiation was discussed. The intention of that piece was to dispel, or at least chip away at the prevailing conventional wisdom of many people and practitioners that such behavior is irrational, if not aberrant and ethically questionable. http://mediate.com//articles/BenjaminMachiavelli.cfm
In summary, the article observes that while making difficult decisions in the midst of complex controversies is serious business that requires careful and methodical analysis and disciplined thinking, such a logical and rational approach is not sufficient by itself. The people who are involved in such matters are invariably pushed and pulled by their fears, anxieties and biases that can blow over them, sometimes with a tsunami-like force that sweeps away logic and reason. Feeling at risk and vulnerable, they grasp at any notion that seems simple and solid as an explanation and solution. These are the kinds of circumstances in which people find themselves immersed when they are “forced” to negotiate. They have typically ruled-out of already exhausted the alternatives of warfare or litigation as too costly in money, time, energy or blood. Although some people are enjoy and are exhilarated by the prospect of engaging in negotiation, most find it stressful and discomforting, and not a few downright hate the process, considering it a dubious, unprincipled, or even immoral activity.
Peoples’ resistance to negotiation is in part the result of not having had much chance to learn about the mechanics or be exposed to the process. Although negotiation is an essential skill set for any kind of collaborative effort, it is seldom taught formally and remains an unfamiliar and strange process. When the media or newscasters announce, “the parties are negotiating…” they seem to presume people know what that means, when in fact, it is for most a vague and mysterious process done behind closed doors. And, when the outcomes of negotiations are announced, they seldom make sense and are subject to second-guessing. It is no wonder that, when people are compelled to consider negotiating a problem, be it personal, business, or otherwise, uppermost in their minds is the potential for loss of self-esteem, reputation, money, property, position, or authority.
Aside from the stress of uncertainty, accompanying almost all negotiations is the near constant fear of being played for a fool. For most people, this makes their first order of business self-protection. The issues need not be life threatening for a person’s survival instinct to be activated and even experienced practitioners enter a negotiative process warily. Their only advantage comes from somewhat more alert and prepared for schemes that might be compromising. And, not surprisingly, humans who feel threatened, whether it is real or imagined, are prone to unconsciously or intentionally devise and deploy their own gaming strategies, out of self-defense. Gaming behavior is a time-honored means for a negotiator to alternatively protect him or her and to probe and testing the integrity and trustworthiness of the other participants with whom they must do business.
It is easy to see why many people and practitioners quickly become exasperated and exhausted with the often tedious convolutions of game playing and yearn for a more direct and reasoned process. Therein lies the attraction for a more purely rational negotiative process based on mutual trust and open and transparent communication. Unfortunately, our messy human brains are not sufficiently obliging and it is hard to overcome or extinguish the game playing behavior that has evolved over countless centuries as a means of survival and remains viscerally ingrained.
Game playing behavior, however, is not inherently at odds with the essential purpose of negotiative processes as a pragmatic, sensible and efficient means for people to manage difficult issues and controversies. In fact, it is often the circuitous and digressive nature of that behavior that can catalyze and encourage people to come to agreement in ways that are not as easily obtained by logic and reason alone. The same game playing strategies and devices deployed by a negotiator to seek the advantage over others can also to be placed in service of strategically maneuvering others, and manipulating the negotiative process so that different perspectives of the issues become more readily apparent, and for more creative options to emerge for consideration.
Finally, the use of game playing strategies and devices need not spell the devolution of the negotiative process down a slippery slope into a pit of unethical behavior. The acknowledgement and acceptance of game behavior is not carte blanche permission for a mediator or negotiator to use any means necessary to reach an agreement. It does, however, obligate a practitioner to shed the commonly held belief that the use of deception and manipulation is ipso facto, bad and unethical behavior; acknowledge that game playing is a natural and necessary part of any negotiative process; and that it can be constructive and useful. Many practitioners admit as much, at least in private. They accept that the rational purposes of negotiation cannot be separated from the participants instincts, biases, emotional reactions, which give rise to their “predictably irrational” judgments and decision making. In any negotiative process the shift from that predictable irrationality to a workable agreement is often facilitated by game playing. Game playing, therefore, is more than merely a bunch of tricks; it is an integral component of the negotiative process that requires a practitioner’s constant awareness.
Far from being vestigial and anachronistic, many current studies in cognitive neuroscience and psychology clearly suggest that the purposes of game playing behavior remain as vital and necessary in the present day as they have been throughout human history. Yet, while the presence and importance of gaming is often discounted or marginalized, what may be over emphasized is the confidence in rational analysis and thinking as a sufficient means of managing and settling difficult matters. That frame of thinking that gave rise to a belief in humans as “rational actors” was derived from the Age of Enlightenment some three hundred years ago and postulates the still prevalent notion that: if given the opportunity, people will make rational decision based on their calculated self interests. This leads many people believe that conflict management—a peace— is obtainable, if only people would come and reason together. Through the civil discourse of issues, people can rationally assess the costs and benefits of the matter and come to solutions that will accommodate their respective interests and needs. By this rendering, irrational thinking and bias, are not just aberrations, but diseases that must be “fought with facts and education.” (Campbell, T. and Friesen, J., “Why People “Fly from Facts,” Scientific American, March 3, 2015)
In Western “techno-rational” cultures especially, there has been a concerted effort to distinguish between thinking and feeling. So it should be no surprise that missing from this rational hypothesis for managing conflict is the more recent understanding of the functioning of a messy human brain where analytical and emotional processes are inextricably enmeshed. And, while the brain is clearly a magnificent organ, it nonetheless is prone to operating selectively and with varying degrees of precision. The human senses of sight, hearing, taste, smell, feeling, and intuition, that provide the raw data for perceptions, work alongside a selective and imperfect memory system, that can sometimes obscure or confuse those perceptions, with the result being distorted or invalid judgments and conclusions. As often as not, what are facilely identified as “facts” not subject to question, are little more than hunches that lead people to presume they have an accurate understanding of events and their meaning. (LeDoux, Joseph, The Emotional Brain, 1996)
While the effort of people to be disciplined, analytical, and rational in their thinking— what Daniel Kahneman calls “effortful” system 2 thinking—remains a worthy one, what he and his colleague Amos Tversky observed over many years of study, is that the expectation of such logical thinking on a regular or consistent basis is not realistic. If anything, people tend to be more prone to being “predictably irrational” in their daily decision making and judgments, and all the more so in stressful circumstances such as the negotiation of a difficult issue. (Kahneman, A. Thinking Fast and Slow, 2011)
Not only the direct participants in a negotiative process are affected. The professional consultants, advisors, and third party mediators or ombudspersons, are all subject to heuristic biases. (Kahneman, D., Slovic, P., and Tversky, A., Judgment Under Uncertainty: Heuristics and Biases, 1982) And, while it is helpful to be mindful of the emotional processes at work, there is no immunity or complete “cure” available for this “irrational” thinking. Trying to compensate by being overly rational and objective carries risks as well; there is a point at which being too rational becomes irrational. This is especially so in negotiate processes in complex matters, where a workable agreement is seldom a coherent, internally consistent, logical, and rational outcome. Mediators, for example, who take themselves too seriously in professing to be dispassionate and objective neutrals, are especially susceptible to challenge. The sufficiency and primacy of Rational Decision Making Theory in explaining and understanding negotiative practice is increasingly being challenged and displaced.
The gaming strategies and devices, which are often cast as irrational by traditional definitions of rationality, frequently serve rational purposes. Playing games can allow negotiators the time and means to assess the situation and the others involved before they commit to the process or an agreement. (Benjamin, R.D., “On Becoming a Rationally Irrational Negotiator/Mediator,” http://mediate.com//articles/on_becoming_rationally_irrational_1.cfmm, Nov. 2009)
In any event, regardless of whatever one might think of the functionality, or ethical and moral propriety of game playing in negotiation, the behavior is not likely to be extinguished from the human repertoire anytime soon.
Every substantive approach to negotiation has corresponding game playing strategies and devices
Game playing is not just an occasional occurrence; it is present and an integral part of virtually every negotiative process. Whether done intentionally or unwittingly, it cannot be dismissed as merely a marginal or vestigial activity that is unimportant and without consequence. Some observers and practitioners associate game playing with certain negotiation approaches. Notably, for example, they will typically assume that competitive negotiators, or those who are inclined to use positional bargaining tactics, are playing games and disingenuous. At the same time, those who identify themselves as interest based negotiators and espouse the reasoned persuasion approach, are presumed to be straightforward and without guile. Such facile judgments are often conditioned by a cultural mythology that prefers civil discourse and eschews competitive approaches that are seen as counter to collaboration. Such assumptions, however, can be unwarranted and delimiting.
A practitioner’s choice or exhibited preference for a particular negotiative approach reveals his or her personal and professional heuristic bias, but says little about their willingness to engage in game playing. In practice, game playing strategies and devices are as common in processes presumed to be rational and reasonable—albeit more refined and subtle— as they are in the more disfavored competitive approaches where they are more flagrantly displayed. Reason and logic can be used as manipulative tools or weapons in negotiation and mediation as easily as intimidation and other hardball tactics can be used to compel a favorable settlement.
This Inventory is based on two working assumptions:
1. All of the commonly practiced negotiative approaches or strategies have valid and substantive uses and applications in some contexts and circumstances; and,
2. Each of those approaches has corresponding characteristic game playing strategies, devices, tactics and behaviors associated with them.
The organizing approach to formulating an inventory of gaming devices and strategies, therefore, is based on examining each of the commonly used negotiative approaches and identifying the gaming strategies and devices that regularly tend to appear. The negotiative approaches have evolved in response to environmental or cultural influences or factors, developed out of pragmatic necessity in particular settings.
An overview of the predominant substantive negotiative approaches and their associated game playing strategies include the following:
1. Reasoned persuasion and games of reason. The belief that people can “come and reason together,” thoughtfully discuss “facts” and assess the costs and benefits of options, is a noble approach that remains prevalent. What is less noticed is the game playing that occurs in the reasoned persuasion approach. There is frequent sparring over the methodology, interpretation, implications, and validity of the “facts” presented by the parties, and all sides use rhetorical devices to challenge each other’s logic. Reason is often used as a weapon to defeat others and many negotiators play for a strategic advantage by cultivating and presenting a rational, dispassionate, and self-assured demeanor.
2. Positional bargaining and the “high-low” game. While often maligned as narrow and dysfunctional shootouts with negotiators firing offers and counter-offers, often untethered from any logic, such behavior can sometimes have a valid and useful purpose. The game creates a structure for parties to circle and slowly engage each other as a means of assessing their motives and limits, and to protect themselves in negotiation.
3. “Caucus-style” negotiation and the “divide and conquer” game. This is, not unlike positional bargaining, another form of an asymmetric, indirect, negotiative approach, where the parties trade limited amounts of information or limit direct contact. Shuttle diplomacy and on-line dispute resolution are also examples. The assumption is that by controlling the information, timing, and meeting format, a negotiator has an opportunity to manipulate the outcome.
4. Competitive negotiation and the intimidation game. Commonly known as “hardball” negotiation, competitive negotiative strategies are characterized by ultimatums, deadlines, and tactics that misdirect or are deceptive. While strongly criticized by many practitioners for being non-collaborative, disingenuous, and even unethical, competitive forms are always present in negotiative processes and such tactics are sometimes useful in catalyzing and clarifying the discussion of issues.
5. Relational negotiation and the “I feel your pain” game. This strategy emphasizes the importance of fostering communication, acknowledgement and empathy between the parties, with the key components being the display of authenticity and building of trust. The strategic use of words, verbal and non-verbal language, and other theatrical devices become especially impotent.
Choosing a negotiative approach
Negotiators still tend to choose an approach as much out of habit, or by default, as they do by conscious choice. More often than not, it is a product of a number of factors, including the practitioner’s personality, personal and life experience, including his or her tolerance for conflict and ambiguity, comfort with negotiation, and, of course, cultural, ethnic, religious, and gender influences, among others. Professional or academic training and experience, in negotiative skills and techniques may also be a factor, but it is not clear that formal study in one of the law and graduate school programs that have come about in recent years have significantly altered practitioners choices of a negotiation approach and but there are still many unconscious influences.
In short, the choice of a negotiation or mediation approach is made with varying degrees of care. Many practitioners have been trained in the use of a reasoned persuasion approach, but out of necessity, revert to a context driven choice. For example, under the strong influence of a competitive legal or business culture, practitioners adopt a more competitive approach. (Krivis, Jeffrey, “The Settlement Shift,” http://mediate.com/articles/KrivisSettlementDrift.cfm, June 2014) Similarly, many practitioners simply rely on habit, or what is most familiar and conventional in their local area or geographic region. Negotiation behavior is as much a product of ritual as it is a socially learned skill set. Thus, if an issue arises in a legal or business context, the operative presumption is that the matter is primarily about money, power, or control, while if it occurs in the family context, the presumption is that the issue about communication and acknowledgement. Similarly, those whose discipline of origin is law are disposed to view issues through a legal or business lens while those from the counseling professions tend to be focused on interpersonal relationships. Many practitioners allow their choice of a negotiative approach to be based on their practice specialization.
Many practitioners choose an approach based on their beliefs about human nature and their hunches as to how people are influenced and make decisions without seeking to validate their assumptions. With the “bumper sticker worthy” adage, “they only understand force” as their working assumption, some negotiatiors presume that “hardball” approach is necessary.
In addition to the choice of a negotiative approach, negotiators and mediators tend to make personal style choices in how they practice. The three most prevalent are the facilitative, evaluative and transformative styles. The facilitative style is most connected with reasoned persuasion and emphasizes a process that elicits the party’s interests and needs through questioning and dialogue. The evaluative style emphasizes the assertion of recommendations and opinions about the right or best outcome, and tends to be associated with the competitive approach. The transformative style, focuses on the personal engagement and relationship between the parties in a matter and emphasizes their “acknowledgement and empowerment” of each other, and the outcome is secondary to the process.
(Zumeta, Zena, “Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation,” Mediate.com, September 2000) While some styles are more closely associated with certain approaches, they are not exclusively bound to a particular approach. A facilitative style might be used in a competitive approach, and likewise, an evaluative style might be used in an approach that is predominantly based on reasoned persuasion.
Whether out of habit or belief, the risk of a practitioner being bound too tightly to a particular negotiative approach or style is that the use of other potentially effective strategies, techniques, and skills, common to other approaches or styles, will be closed off. Cues about issues that may be significantly affecting those under consideration might well be missed and tactics that might provide opportunities for settlement will be overlooked. In the fog of a difficult controversy a practitioner cannot afford to rely solely on any particular negotiative approach. Those who might otherwise strive to be reasoned and analytical might benefit from the occasional use of tactics and devices that border on being coercive or deceptive. Likewise, a competitive negotiator can employ the element of surprise by demonstrating a measure of empathy to reach an agreement. Effective negotiation practice requires compromise with regard to not only the substantive issues, but as well, with regard to the negotiation approaches considered and used. In negotiation as in warfare, while a thoughtfully prepared negotiative strategy and plan is essential, of greater importance is the ability to know when that plan must be modified or revised as circumstances require. (Benjamin, R.D., “Guerilla Mediation: The Use of Warfare Strategies in the Management of Conflict,” Mediate.com, 1999)
Few practitioners are orthodox adherents of a particular negotiative approach. As a practical matter, they cannot afford the luxury of being overly purist in their approach if they are to manage complex and difficult issues. Not infrequently, at some point in the process a negotiation or mediator will likely be compelled, given changing circumstances, to shift his or her strategy. Many experienced practitioners, in fact, have come to realize that shifts in negotiation strategy can itself be a useful form of game playing that allows a negotiator or mediator to change the pace and focus of the process. Shifting from a reasoned to a competitive approach for example, can be effective in dislodging a party or opponent who is too settled in a particular position. The shift can cause a measure of doubt, risk or confusion and catalyze a reconsideration of their perspective.
Curiously, many experienced practitioners—even if they are hesitant to openly admit to doing so, been using gaming strategies and devices out of necessity. Each negotiator has his or her preferred techniques, tactics, less delicately known as “tricks,” that they believe allow them to be effective in obtaining workable agreements or settlements. They have come to understand that appropriately employed, gaming tactics allows for a broader range of motion. They have come to accept that to finesse and manage difficult and complex matters they must be free to use indirect and elliptical gaming tactics that often elude more direct approaches.
Reason and Wit, and Game Playing
Negotiative practice is most fascinating because there are few disciplines that more directly require the integration of ability to reason with wit drawn from an intuitive sensibility. Reason provides a negotiator or mediator with a structural frame while wit gives him or her access to the “street” sense and feeling of how things fit together that allows them to plot how to maneuver between the parties in a controversy and make a deal come about. In the process, however, the distinction between what is rational and irrational behavior becomes increasingly vague. Sometimes a direct, reasoned approach will work; at other times, a more elliptical and circuitous course is required.
All human interactions and collaborations require a mix of reason and wit. Rational planning is drawn from scientific discipline and methodology. The sources of wit are less clear, but there are deep roots in the arts and draw from myth and folklore. In particular, the folkloric trickster tradition, present in every culture, is closely related to the work of negotiators and mediators. In the stories and myths the trickster figures are consummate game players obligated to manage a measure of reconciliation between immovable objects and irresistible using both sacred and profane tactics Trickster figures operate, not unlike negotiators and mediators, by shifting their persona and transforming the given construction of reality in a manner that allows for other options to be considered. The purpose of trickster, like a mediator or negotiator, is not the pursuit of the truth or the right answer, but for an accommodation that allows all concerned to survive. (Benjamin, R.D., “Managing the Natural Energy of Conflict: Mediators, Tricksters, and the Constructive Uses of Deception,” in Bringing Peace Into the Room, Bowling, D. and Hoffman, D., eds. 2003)
Reason and wit are integrated in practice by a practitioner’s wisdom—their ability to perceive when and how to draw from one or both traditions and to moderate between the two. Throughout human history, including the Old and New Testaments, the dynamic between wit and reason are on display. Reasoned persuasion, along with displays of anger, deception, or strategic feigning of one kind or another, are all used in varying circumstances by people to encourage others to accept their view. Even God appears on occasion as a trickster figure that plays games with humankind. (Niditch, Underdogs and Tricksters” A Prelude to Biblical Folklore, 1987)
There is no intention to downplay the very real risks of the use of game playing strategies and devices in negotiation. If a process is perceived to be overburdened with gaming machinations by a party or a mediator, there is a significant chance that the trust level and confidence of the participants will be degraded and undermined to a point where the process might well fail. Most practitioners operate in the middle ground, recognizing that the total exclusion of game playing is unrealistic, but that too much gaming is risky as well. The issue of how much to manipulate the negotiation process clearly obligates careful monitoring. Whether rightly or wrongly, it is often framed as a matter of where the lines should be drawn by a negotiator or mediator between being “completely honest and truthful—assuming that is possible, how much less than honest, or outright deceitful. These issues will be discussed in Part 3 of “Game Playing in Negotiation: A Framework for the Assessment of the Constructive Uses, Risks, and Ethical Limits”
The most reasoned and validly purposed act can also be manipulative, and the most intentionally deceptive act can be constructive and aid the resolution of an issue. The consequence of the use of any tactic is not entirely predictable. Sometimes an action triggers an unanticipated and unintended blowback, while at other times, a device intended to be disruptive can lead to a constructive outcome. Similarly, the most innocuous expression or comment can easily be misconstrued and a negotiator or mediator’s most cautious. A cautious and reserved demeanor can be taken as evidence of a plotting, manipulative, and deceitful intention. A negotiator’s loud and dramatic expression of a position can easily be taken as an attempt to intimidate or assert control, while a passive or quiet demeanor may be the feigning of being a victim. As well, not so hidden are the all-too-common tropes based on gender, race, ethnicity, religion or profession that more often than not misguide the casual observer. Among them are the “angry Black man,” the “hysterical women,” and the “controlling and overbearing man,” to name but a few. Not infrequently, even the good faith effort of a party to act reasonably is misperceived as an intentional deception and any made is rejected out of hand by the responding party; their gut level distrust of the other party triggers a “fast” thinking “reactive devaluation” of any proposal, no matter how plausible. Alternatively, encouraged to rely on trust, many people risk letting down their guard and being compromised.
Game playing is frequently blamed for exacerbating the confusion that surrounds negotiative processes. However, there is no clear evidence that confusion would lessen even if people could resist game playing. In any event, there is no way to effectively stop game playing and there are also risks and costs in attempting to do so. The refusal to engage in game playing, whether as a matter of ideology or personal choice, significantly limits a negotiator or mediators range of potentially creative strategies that might be used to constructively settle difficult matters. This more nuanced understanding of game playing challenges the conventional view of gaming as at best an unnecessary distraction, or worse, an intentional effort to take advantage of other people.
In reviewing the common negotiative strategies and their game playing correlates, there are three important considerations to keep in mind:
1. Many present day practitioners tend to be partial to the reasoned persuasion approach—at least in theory. That bias sometimes makes it difficult for them to consider the validity of other approaches, such as the competitive or positional bargaining approaches, which are not generally viewed as favorably. The natural history and evolution of the negotiative process, suggests that every negotiative strategy has substantive uses and serves necessary purposes in some contexts and circumstances. (Benjamin, R.D., “The Natural History of Negotiation and Mediation: The Evolution of Negotiative Strategies, Approaches and Rituals,” Mediate.com, 2012)
2. Historically, negotiative processes have been viewed as tools to manage controversies— not to further an ideological view. They evolved and remain, first and foremost, a pragmatic means by which humans survive, protect themselves and manage difficult matters or controversies. It requires manipulating the surrounding environment, circumstances, and people in pursuit of what one or many people feel would be a better situation for themselves. There is little room for purity in the choice of a negotiative approach, strategy, or model, and game playing is invariably a part of the process.
3. While game playing involves manipulation and some amount of deception, it does not follow that such behavior is inherently unethical and cannot be executed ethically. By game playing a negotiator does not necessarily sacrifice of their authenticity, and does not require crossing ethical limits.
From a practice perspective, this cataloguing is intended to offer a means of identifying the gaming tactics so that they might anticipate and normalize their use, which in turn gives practitioners the ability and skills to manage or counter gaming behavior constructively. With that awareness and skill, a practitioner can by design fashion responsible pre-emptive gaming strategies to finesse or circumvent difficult situations that might otherwise block or hinder the emergence of a workable agreement.
More generally, this beginning Inventory of gaming strategies and devices is intended to allow for and encourage the systematic study of game playing dynamics in negotiative processes. Beyond being a pervasive presence, game playing is often a critical factor the awareness of which is often directly related to the success or failure of the negotiation process. Game playing dynamics are a component of the negotiative process that are in motion alongside— and of equivalent importance to— the analytical assessment of interests and needs, and the assessment of the interpersonal dynamics and communication systems of the participants.
From a historical perspective, by giving deserved attention to the game playing dynamics of negotiative processes, there is also the prospect that the ingrained view of the behavior and negotiation, which is often viewed with hesitancy, or worse, contempt, might be moderated. By offering a more realistic and expansive awareness of the complexity of negotiative processes could residually give negotiation and mediation greater validity, legitimacy and acceptance by the public and other professional disciplines. (See: Benjamin, R.D., “A Natural History of Negotiation and Mediation: the Evolution of Negotiative Behaviors, Rituals, and Approaches” http://mediate.com//articles/NaturalHistory.cfm, June, 2012) Game playing behavior, and more broadly, the negotiative processes that are often cast as little more than game playing, instead of being viewed as trivial and ineffectual as a means of dealing with difficult matters, can come to be seen more accurately as useful, if not essential, components of effective negotiation and mediation.
Originally published March 2015.