Bargaining in Bad Faith: Dealing with “False Negotiators”

We tend to forget—at our peril—that not everyone at the bargaining table wants to close a deal and may be bargaining in bad faith.

Consider the following negotiations:

• A competitor approaches you about a potential partnership. After a series of meetings that seemed promising, however, your counterpart stops returning your calls. You are left with the nagging suspicion that the party’s only goal was to glean privileged information about your business and use it to gain an advantage in your industry.
• A student who has just finished graduate school is negotiating for her dream job. To try to drive up the salary that’s been offered, she negotiates an offer from another employer—for whom she has zero interest in working—to use as a bargaining chip.
• To improve its global reputation, a national government makes significant but nonbinding financial commitments in a multilateral environmental negotiation, secure in the knowledge that its legislature back home will vote down the agreement and let it off the hook.

In each of these instances, a party entered into a negotiation, bargaining in bad faith, with no intention of closing a deal or following through on negotiated commitments. Such behavior is inconsiderate at best, immoral and even potentially illegal at worst. Yet many of us likely have dealt with such negotiators or even initiated such negotiations ourselves.

In a new study in the Journal of Conflict Resolution, researchers Edy Glozman (Columbia Law School), Netta Barak-Corren (Harvard Law School), and Ilan Yaniv (Hebrew University of Jerusalem) take a closer look bargaining in bad faith, at what they term “false negotiations”—those times when a party engages in a negotiation process with no desire to reach agreement (or with no intention of implementing any agreement reached).

False negotiators believe that their best alternative to a negotiated agreement (BATNA) is superior to any offer you could possibly make. Yet they also believe that to sustain or improve their BATNA, they must go through the motions of negotiating with you. Maybe they hope to gain an offer from you that they can use as leverage to get a better deal elsewhere, as in the case of the graduate student who is trying to get a better salary offer.

Perhaps they hope to get information from you to use to their advantage (and at your expense), as in the case of a competitor who negotiates to gain inside information about your company. Pressure from constituents or observers could also lead people to enter into a negotiation under false pretenses, as in the case of a government that participates in a multilateral negotiation just for show.

Clearly, for the party being used, a false negotiation is a waste of time and money. To make matters worse, false negotiators sometimes have incentives to drag a negotiation on as long as possible—for instance, if they would take heat for walking away or are waiting for a “better” counterpart to come along.

To sustain or improve their BATNA, false negotiators believe they must go through the motions of negotiating with you.

Unfortunately, a false negotiation can be very difficult to distinguish from a real one. But, drawing on the results of their research, Glozman and his colleagues have identified a constellation of clues that may help you identify a counterpart who doesn’t want to get to yes.

An effective deal breaker

In their experiment, Glozman and his team had pairs of students engage in a simulated negotiation between an international high-tech company and a government agency over the company’s expansion plans. The company was seeking a permit for the expansion, a $400 million government grant, and an exemption to a requirement to hire local workers. The negotiations took place via instant messaging over the course of a week.

Students representing the government agency were given incentives to reach agreement, such as the potential to create local jobs. Among those representing the high-tech company, some had incentives to make a deal. Others, by contrast, had no such incentives; they were told that the director of the government agency would soon be replaced with someone who was likely to be more receptive to the company’s requests.

These “false” negotiators had a motivation to negotiate with the current director without reaching a deal, lest the government agency seek a new partner with one of the company’s competitors. Not surprisingly, only 22% of negotiators in the false condition reached an agreement, as compared with 90% of those in the sincere condition. In other words, false negotiators had no difficulty ensuring that they reached an impasse.

More interestingly, the researchers determined that the counterparts of false negotiators (those playing the role of government negotiator) were unaware that their negotiating partners didn’t want to reach a deal. However, after the negotiation, the false negotiators were rated more negatively—as stubborn, unresponsive, frustrating, and so on—by their counterparts than the sincere ones were.

False negotiation tactics used when bargaining in bad faith

The false negotiators’ bargaining behavior differed from that of the sincere negotiators in distinct ways, Glozman, Barak-Corren, and Yaniv found in their analysis of the negotiators’ interactions. First, false negotiators responded more slowly to their counterparts, dragging out the negotiation process (a deliberate tactic, they admitted after the fact). False negotiators also delayed putting a first offer on the table, typically waiting until their counterpart explicitly asked them to do so.

In addition, false negotiators tended to make fewer relevant statements than the sincere negotiators. Rather than staying on task, false negotiators were more likely to ramble about issues and concerns unrelated to the negotiation. As compared with sincere negotiators, false negotiators also were more likely to mention constraints, such as accountability to their superiors, that they claimed were limiting their ability to reach agreement. At the same time, false negotiators tried to counterbalance this behavior (and perhaps throw sincere negotiators off the track) with explicit promises to cooperate.

Notably, the false negotiators—who had been instructed to prolong the negotiations—did not escalate their demands until the clock was running down. And when given the opportunity, false negotiators were more likely than sincere negotiators to assign a lawyer with no negotiating authority to take over for them during the second-to-last session of the negotiation.

A syndrome of signals

It’s not surprising that study participants failed to detect the motives of false negotiators when they are bargaining in bad faith. Consider that a false negotiator’s mix of competitive behavior and cooperative statements could easily be mistaken for the hard-bargaining tactics of someone who wants to reach a deal but is willing to risk impasse to try to get what they want. After all, stalling, expressing a desire to cooperate, and going “off message” are distinct behaviors found in sincere and false negotiators alike.

Rather than reading too much into one or two suspicious behaviors, Glozman and colleagues encourage us to view the array of behaviors displayed by their participants as a “syndrome” of signals potentially indicating that someone isn’t bargaining in good faith. An awareness of the false-negotiation phenomenon should inspire you to consider the possible hidden motives of a counterpart who habitually delays, makes extreme demands and minimal concessions, pays lip service to being collaborative, and, when possible, passes off her duties to unauthorized delegates.

How else can you identify false negotiators? Through active listening, the researchers advise. Negotiators who dominate the conversation not only pass up opportunities to create value with collaborative counterparts but also are unlikely to notice when a counterpart is allowing time to slip away and failing to fully engage in reaching agreement. Exploring the other side’s interests by asking lots of questions should lead you to a better understanding of what he wants—and whether he thinks you can provide it.

A final note: Periodically throughout your career, you may face incentives to initiate a false negotiation yourself. In keeping with research in the field of negotiation ethics, we advise you to look for other ways to meet your goals when faced with such temptations. If your true motives are discovered, you could be blackballed in your industry or face other negative repercussions.

Resource: “False Negotiations: The Art and Science of Not Reaching Agreement,” by Edy Glozman, Netta Barak-Corren, and Ilan Yaniv. Journal of Conflict Resolution, 2015. The Program on Negotiation at Harvard Law School granted Barak-Corren the 2013 Howard Raiffa Doctoral Student Paper Award for this article.

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