3 Reasons Why the Harvard Concept May Jeopardize Your Negotiation Success

The following article will first briefly explain why the crisis negotiation model is superior to the Harvard Concept (see Section 1).

Afterwards, it will outline three weaknesses of the Harvard Concept (see Section 2). Finally, for those interested in the (exclusive) expertise of professionals, it will provide a more detailed explanation of these three weaknesses and how to avoid them (see Section 3).

Section 1

The Hardvard-Concept as a Milestone

Anyone deeply involved in negotiations is familiar with "The Harvard Concept" by Ury, Fisher, and Patton (originally "Getting to Yes") and often also with Ury's bestseller "Difficult Conversations" (originally "Getting Past No"). Both works are undoubtedly milestones in the professionalization of negotiation.

I myself read the Harvard Concept when I was a young lawyer back in 2002. Unfortunately, I was disappointed to discover during my practical application that the recommended techniques do not work in tough or conflict-laden negotiations.

The Model of Crisis Negotiations as a Paradigm

I only understood why this was the case years later, after I had delved into the model of crisis negotiations more and learned how the best of the best, namely police-trained negotiators, conduct their negotiations (see, for example, Schranner's "Negotiating at the Edge," Voss's "Never Split The Difference," Kohlrieser's "Hostage at the Table," and McMains/Mullins's "Crisis Negotiation").

This model was developed in 1972 (following the terror attacks during the 1972 Olympic Games in Munich) by the NYPD, later adopted by the FBI, and has been continuously improved ever since. Every one of these strategies and tactics is subject to constant real-world testing, which is evident from the fact that crisis negotiations (e.g., hostage situations) can often be a matter of life and death. Currently, only strategies and tactics that lead to sustainable positive outcomes are applied and taught: "The police practice of using hostage negotiations has come a long way during the last twenty years. We continue to learn from our past. Not to do so is to repeat our mistakes" (Strentz, "Psychological Aspects of Crisis Negotiation"). This learning takes place, among other locations, in Quantico, the "Harvard of Law Enforcement."

As part of this continuous learning process, the Harvard Concept was certainly also put into practice, but it has not been used since 2000 due to a lack of sustainable success. The tactics from the book "Getting Past No," however, are mandatory reading for anyone who wants to consider themselves an elite negotiator (see McMains/Mullins, "Crisis Negotiation").

The crisis negotiation model is not only state-of-the-art but also universally applicable across various types of negotiations. Therefore, it should serve as a model for both your private and professional negotiation and conflict resolution efforts.

The 2018 Edition: A Disappointment

The Harvard Concept saw a new edition released in 2018. Contrary to my expectations, this updated version did not address the critiques (see, for example, Jung/Krebs, Contract Negotiation) leveled against the original Harvard Concept first published in 1981. The significant opportunity to modernize the Harvard Concept by incorporating the latest developments in social psychology, conflict research, and the crisis negotiation model was overlooked. This oversight is simply incomprehensible. In the (unmodernized) new edition, it is even claimed that, and I quote, "there is no more practical and reality-oriented guide to successful negotiation" (Luksch in Fisher et al.).

After more than 20 years of intensive negotiation practice and scholarly engagement with negotiation models, I assert the exact opposite to be the case. The Harvard Concept, with its focus (i) on cooperation as a conflict strategy, (ii) on objective criteria for conflict resolution, and (iii) on the BATNA model, is, in reality, not ideally suited for successfully conducting complex negotiations.

Instead, the model of crisis negotiations, which is constantly being updated, has now become significantly superior to the Harvard Concept, in my opinion.

Section 2

An Overview of 3 Noteworthy Weakpoints to Consider

The following three weaknesses are particularly noteworthy:

Firstly: The Harvard Concept advises focusing on cooperation, dismissing confrontation as inefficient. The top negotiators take a different approach: they always begin their negotiations with professional confrontation, meaning they are respectful in their behavior but steadfast in their ambitious positions. They aim to understand all conflicts in detail first, using Position Bargaining and intensive argumentation or discussion. They pause to deliberate on their next strategic move. It's only upon choosing cooperation that they begin to contemplate potential solutions, ensuring this reflection occurs exclusively at this juncture, not before. In short: Analyze all conflicts first, then begin to try to solve all conflicts collectively.

Secondly: The Harvard Concept suggests resolving conflicts by adhering to objective criteria, while overlooking the subjective preferences of the parties involved. The top negotiators do it differently: they understand that decisions are conducted based on emotions and that negotiations, in reality, are only seemingly rational. They therefore focus on their partner's emotional state when resolving conflicts. Their goal is to win ("Play to win") while ensuring their partner is (only) satisfied ("create satisfaction").

Thirdly: The Harvard Concept suggests aligning with the best alternative to the present negotiation. However, the most adept negotiators take a distinct path: they zero in on their specific and motivating objectives, refusing to be discouraged by the possibility of less advantageous alternatives.

Section 3

The following section delves into the aforementioned three weaknesses in greater detail. It also highlights how top negotiators circumvent these pitfalls.

Weakness #1: Avoiding Confrontation

The Harvard Concept advises its readers against engaging in positional bargaining or "haggling." The 2018 edition reiterates: "Bargaining does not lead to wise, efficient, and amicable decisions" (Fisher et al.). It strongly recommends framing negotiation as a collaborative effort, where "despite differences, varying perceptions, and emotional elements, both parties tackle the task together, side by side" (Fisher et al.).

Critique: This advice should – in light of research on the topic of conflict – not be followed.

The dismissal of professional confrontation (personal respect coupled with uncompromising content) overlooks the scientific insights from conflict research: "Conflict is positive" (Kohlrieser, Hostage at the Table). Conflicts, and thus the negotiation over differing positions, should initially be identified and analyzed through precise destructive criticism. Only thereafter should attempts to resolve these conflicts through constructive criticism be made (see Gerhard Schwarz, Conflict Management).

Overemphasizing cooperation and rejecting professional confrontation ignores the following benefits of professional confrontation:

First of all, it allows you to earn respect, achievable only by (initially) being uncompromising (see Glasl, Conflict Management).

Secondly, it enables you to persuade your counterpart of your position's validity, often resulting in concessions on some of the disputed positions or conflicts.

Thirdly, it facilitates information gathering to reduce the inherent information deficit in any negotiation or conflict. Only through intensive and rigorous discussions can you gather enough information to accurately identify and define conflicts.

Fourthly, engaging in bargaining (with ambitious positions on both sides) initiates the highly effective tactic of give-and-take. Professionals refer to this as combining the anchoring effect, the contrast principle, and the rule of reciprocity (see Cialdini, Influence, and Kahneman, Thinking, Fast and Slow).

Best Practice Tip for Practitioners: Never shy away from honest and clear conflicts, while also always treating your negotiation partners with the utmost amount of dignity and respect: "don't avoid honest, clear conflict" (Kohlrieser, Hostage at the Table). Once you believe all conflicts are understood, compile them into an "Open Points List" and pose the legendary question by George H. Ross, former legal advisor and negotiator for Donald Trump: "If we solve all of these problems, do we have a deal?" (Ross, Trump Style Negotiation). If the answer is "Yes," then all conflicts (at least for the moment) have been defined.

Only now (and not a moment sooner) should you contemplate your next steps: If you wish to enforce all your positions, you may continue the confrontation, leading to a win or loss. Alternatively, you could pause the negotiations (avoidance strategy), concede, or settle for a subpar compromise. Yet another option is to shift towards cooperation and (,only now!!!,) seek solutions together with your negotiation partner. Professionals transform the Open Points List (all analyzed conflicts) into a comprehensive package during the resolution phase, negotiated through give-and-take, aiming for a satisfactory consensus rather than poor compromises.

In the aforementioned Driver-Seat-Concept, this approach is known as the ABC strategy: A for Step 1 (Analyze Open Points), B for Step 2 (Break for Change), and C for Step 3 (Concessions Package Procedure).

Weakness #2: Lack of Tailored Conflict Solutions

When it comes to conflict resolution (e.g., high rent vs. low rent, high purchase price vs. low purchase price), the Harvard Concept prioritizes rationality. Even in the 2018 edition, it dogmatically demands outcomes "independent of the will of the parties involved" (Fisher et al.). The standard should be solely objective criteria. To clarify, the authors explain: "This means the standard cannot be chosen freely but must be an objective standard such as market value, expert opinion, moral standards, or legal regulations" (Fisher et al. 2018, p. 39). It is ultimately asserted: "Objective criteria are your cool partner, preventing you from being pressured. Law empowers you" (Fisher et al. 2018, p. 139).

Critique: This advice should – in light of research on the topic of conflict – not be followed.

The notion that conflicts can be resolved solely through logical arguments falls short, particularly when it clashes with the scientific insight that "individuals are inherently unable to perceive matters in a purely objective manner; they invariably infuse their personal judgments, adding both objective and subjective dimensions to their perceptions" (Salewski, The Art of Negotiating). Given that decision-making is rooted "firmly in the emotional realm, oscillating between hopes and fears" (Salewski), rather than in pure logic, it's illogical to pursue negotiation solutions that are "detached from the participants' desires." Instead, grasping your counterpart's underlying motivations to decode their stance (refer to Salewski) and striving for outcomes that also meet your partner's needs is essential. Put simply, negotiations are driven by apparent rationality, not genuine logic (Salewski).

Therefore, individuals who relish in argumentation are not seen as efficient negotiators (see Strentz, Psychological Aspects of Crisis Negotiation). They overlook that "every argument harbors the seed of aggression" (Salewski), and this aggression is more likely to provoke resistance than concession in their negotiation counterparts. The insistence on being right, recommended by the Harvard Concept and encapsulated in the phrase "law empowers," tends not to yield satisfactory negotiation outcomes.

Best Practice Tip for Practitioners: Together with your negotiation partner (after resolving all conflicts), seek package solutions that satisfy both parties emotionally. Upon objective and unbiased examination, the Trump Style Negotiation (from 2006) far surpasses the Harvard Concept: "Trump-style negotiation is aimed at creating satisfaction for both sides" (Ross, Trump Style Negotiation).

Weakness #3: Lack of Confident Negotiation Leadership

The Harvard Concept endorses the BATNA model, which is the constant focus on the best alternative to the current negotiation (Best Alternative To Negotiated Agreement).‍

Critique: This recommendation should - in light of psychological findings - not be followed. For one, the BATNA model forces you to orient towards a "lower" reference point; on the other hand, it prevents you from leveraging the motivational force of a professionally developed position, thus hindering orientation towards a higher reference point and confident negotiation.

Best Practice Tip for Practitioners: Focus on the end goal.

In summary, professional negotiation is essentially professional conflict management. Firstly: Embrace conflict and meticulously identify each conflict with a positive mindset. Maintain personal respect while striving to prevail (Play to win). Secondly: Only after analyzing all conflicts, look for comprehensively packaged solutions. It's not about proving oneself right; it's about achieving individual emotional satisfaction for all parties (create satisfaction). Thirdly: Negotiate confidently even without alternatives by focusing on your motivating goal (Focus on your goal). This keeps you in the driver's seat.