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Copyright (c) 2000 Harvard Negotiation Law Review
Harvard Negotiation Law Review

ARTICLE: When David Meets Goliath: Dealing with Power Differentials in Negotiations

Spring, 2000

5 Harv. Negotiation L. Rev. 1

Author

Robert S. Adler+, Elliot M. Silverstein++

Excerpt




 
The fundamental concept in social science is power, in the same sense in which energy is the fundamental concept in physics.

Bertrand Russell 1 Power is America's last dirty word. It is easier to talk about money-and much easier to talk about sex-than it is to talk about power.

Rosabeth Moss Kantor 2
 
I.
 
Introduction4
II.
 
Power: What it is and Where it Comes From8
A.
 
Power Broadly Characterized8
B.
 
Power as Social Interaction9
C.
 
The Nature of Power10
1.
 
Power is complex and situational10
2.
 
Perceptions play a key role in power dynamics12
3.
 
To have effective power, one must be willing to use it or be able to convince an opponent that one will use it16
4.
 
Having greater power does not guarantee successful bargaining outcomes16
5.
 
Power in negotiations typically arises from the dependence that each party has on the other19
6.
 
Negotiation power depends less on the other side's strength than on one's own needs, fears, and available options20
7.
 
Power is neither inherently good nor bad21
D.
 
Sources of Power22
1.
 
Personal Power23
2.
 
Organizational Power24
3.
 
Information Power26
4.
 
Moral Power28
III.
 
Power Imbalances in Negotiations: Legal Issues28
A.
 
Undue Influence29
B.
 
Protections in Arm's Length Transactions31
1.
 
Fraud32
2.
 
Duress39
3.
 
Unconscionability42
4.
 
Good Faith and Fair Dealing in Contractual Performance and Enforcement49
5.
 
The Special Case of Good Faith in Precontractual Negotiations52
6.
 
Legal Protections for Negotiators Facing Power Disparities: Final Thoughts54
IV.
 
Strategic Bargaining in Unequal Power Settings: General ...
 
 
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