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Alternatives
TO THE HIGH COST OF LITIGATION
INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION
Alternatives
TO THE HIGH COST OF LITIGATION
Publisher:
Susan E. Lewis
John Wiley & Sons, Inc.
Editor:
Russ Bleemer
VOL. 24 NO. 7 JULY/AUGUST 2006
Jossey-Bass Editor:
David Famiano
Production Editor:
Chris Gage
Alternatives to the High Cost of Litigation (Print ISSN 1549-4373, Online ISSN 1549-4381) is a newsletter published 11 times a year by the International Institute for
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Alternatives
TO THE HIGH COST OF LITIGATION
INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION
DIGEST
NEGOTIATION
It’s a part of the process: People try to
deceive their adversaries in negotiations.
Jeffrey Krivis and Mariam Zadeh, of Los
Angeles, describe the science of deception,
and then provide two lists of cues that you
can watch for to minimize the chances of
being deceived in mediation........Page 113
CPR NEWS
A new expedited construction arbitration
procedure is released by CPR’s
Construction Advisory Committee. Also,
more on the new Master Guides on
Conflict Prevention and Resolution, and a
changed CPR Meeting date ........Page 114
ADR PROCESS DESIGN
Kenneth Glasner, of Vancouver, describes
how a society of British Columbia dentists set
up a mediation program to deal with a wide
variety of patient, insurance, and interoffice
disputes. The program could be adapted for
other self-regulating bodies ............Page 115
ARBITRATION
More on awards’ finality: In the conclusion
of his two-part article, Stuart M. Widman,
of Chicago, discusses more grounds on
which interim arbitration awards may be
confirmed by a court..................Page 118
ADR BRIEF
The American Bar Association’s Standing
Committee on Ethics and Professional
Responsibility backs the same standards of
candor in a mediation setting as it has
adopted in negotiations generally. But the
opinion raises questions about how the
committee will deal with mediation in the
future ..........................................Page 124
DEPARTMENTS
CPR News ..................................Page
Reprint Info..............................Page
ADR Brief ..................................Page
Cartoon by Cullum....................Page
114
114
124
125
VOL. 24 NO. 7 JULY/AUGUST 2006
Back to Deception: ‘Winning’ Mediation
Cases by Understanding Body Language
C. & Olmstead, G., “Information control
in conversations: Honesty is not always the
best policy,” 11 Kansas Journal of Sociology
69–89 (1975)); 2) individuals reported
Although few will admit to it, there is no
that they averaged 16 white lies over a
doubt that deception plays an active role in
two-week period (Camden, C., M. T.
mediation between both sides, and their
Motley & A. Wilson. “White lies in incommunications with the mediator. This is
terpersonal communication: A taxonomy
because every negotiator wants to leave the
and preliminary investigation
negotiating table believing
of social motivations,” 48
that he or she obtained the
Western Journal of Speech Combest possible result for his or
munication 309–325 (1984));
her client.
NEGOTIATION
3) the typical person lies about
Most believe that to accom13 times per week (Hample,
plish this goal, some form of
D., “Purposes and effects of
deceit is required. Some may
lying,” 46 Southern Speech
give deceit in this context a
Communication Journal 33–47
more politically correct name,
(1980)); and 4) 28% of negotiators lied
such as “aggressive bargaining” or “zealous
about a common interest issue during neadvocating.”
gotiations while 100% of negotiators either
We, on the other hand, will refrain
failed to reveal a problem or actively lied
from sugar-coating what transpires in meabout same if they were not questioned didiation every day. We will call it as it is: derectly on the issue (Schweitzer, M., “Deception.
ception in Negotiation,” in “Wharton on
Yes, The “D” word. We’ve all used it as
Making Decisions,” Houch, S. & Kunnegotiators. This article will highlight ways
reuther, H., Eds. (John Wiley and Sons,
of detecting it when it’s used against you.
Inc. 2001)).
Some will find this position cynical.
Deception in negotiation takes many
But research reveals that: 1) 61.5% of subforms, ranging from bluffing, posturing,
jects’ natural conversation involved some
evading, concealing and misrepresenting,
form of deception (Turner, R. E., Edgley,
to outright lying. At every juncture, the
deceiver must decide whether to create
Krivis heads First Mediation Corp. in Los Angeles.
He is author of “Improvisational Negotiation," a
false information such as by lying or mis2005 Jossey Bass/John Wiley book, and is an
representing; whether to deliver vague and
Alternatives editorial board member and frequent
ambiguous information that contains part
contributor. He last wrote about deception in
truth and part deception, such as bluffing
mediation for Alternatives in the July/August
and posturing, or whether to avoid provid2002 issue. See sidebar on page 122 for more
information. Zadeh, a mediator at First Mediation
ing relevant information, in the form of
Corp., is a former litigator and a Master of Laws
evading. Burgoon, J. K. & Buller, D. B.
recipient from the Straus Institute for Dispute
“Interpersonal deception: III. Effects of
Resolution at Pepperdine University. This article is
deceit on perceived communication and
adapted and expanded from an April 24, 2006,
BY JEFFREY KRIVIS AND
MARIAM ZADEH
Focus column originally appearing in the Los
Angeles Daily Journal.
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
(continued on page 120)
120 ALTERNATIVES
VOL. 24 NO. 7 JULY/AUGUST 2006
(continued from previous page)
gaining agreement by failing to make required contributions to the union’s welfare
fund. The arbitrators did not, however, determine the amount owed by the union,
but rather directed the parties to calculate
that amount.
The district court confirmed the liability award, and the Seventh Circuit affirmed, because it was clear that the arbitrators had decided all that they were
asked to do—if Smart owed money. 315
F.3d at 726. The Seventh Circuit noted
that the parties can proceed to arbitration
solely on liability and leave damages for
another process.
Citing Smart, the Seventh Circuit later
decided McKinney Restoration Co. Inc., et
al. v. Illinois District Council No. 1 of the
Int’l Union of Bricklayers, 392 F.3d 867
(7th Cir. 2004). There had been two arbitration awards entered as a result of the
parties’ disputes, and the employer filed
suit to vacate both of them entered in favor of the union. The union sought confirmation of the awards, claiming in part that
the employer’s challenge to the first arbitration award was untimely under FAA
Section 10. The outcome on the timeliness
issue depended, in turn, on whether the
first award was a final award, thereby starting the clock on the time period to seek
vacatur. The employer argued that the first
arbitration was not final, and thus not vacatable, because it left open certain issues
that were decided by the second award.
The Seventh Circuit held that the two
Negotiation Deception
(continued from front page)
nonverbal behavior dynamics,” 18(2)
Journal of Nonverbal Behavior 155-184
(1994).
This article relies on a definition that
views deception as “a deliberate act that is
intended to foster in another person a belief
or understanding which the deceiver considers false . . . Specifically, the deceiver
transmits a false message (while hiding the
true information) and also attempts to convince the receiver of his or her sincerity.”
Zuckerman, M., DePaulo, B. M. & Rosenthal, R., “Verbal and nonverbal communication of deception,” in “Advances in Ex-
awards addressed separate claims and issues, and that the first award fully determined liability and imposed a remedy
with respect to the issues then before the
panel. Since the first award was complete
and final, thereby commencing the statute
of limitations, the request to vacate it was
untimely. Id. at 872.
The Ninth Circuit’s decision in
Venetian Casino Resort, LLC v. Lehrer
McGovern Bovis, Inc., et al., 2004 WL
42384 (9th Cir. 2004), also affirmed the
district court’s confirmation of an arbitration award that decided the only question sent to the arbitrator under the arbitration order—“a discrete component of
their larger dispute.”
Notably, the panel majority rejected the
dissent’s rationale that “although the arbitrator may have decided the question put
to him, that question did not determine a
claim, or liability, or damages, or grant or
deny some equitable relief.” Id. at *2.
The majority got it right, however, because neither FAA Section 9 or 10 refer to
the arbitrator’s decision of a claim, liability or damages, but only to an award. Similarly, FAA Section 2 refers only to arbitration of “a controversy”; Section 3 refers to
arbitration of “any issue”; and Section 4
refers to arbitration “in accordance with
the terms of the agreement.” 9 U.S.C. §§
2, 3, 4.
Thus, the scope of the arbitration—
and therefore the completeness and finality of the award—may not coincide with
traditional notions of liability or damages.
It all depends upon what the parties asked
the arbitrator to address and decide.
For example, many years ago this author issued a final award where the parties
each claimed that the other side breached
hospital management agreements. The
award only determined whether and by
whom there were breaches—but not damages—because the arbitration clause was
limited to just “declaring” if breaches had
occurred. Careful drafting and reading of
the arbitration clause will drive the scope
of the arbitrator’s award and its finality.
perimental Social Psychology,” Berkowitz,
L., Ed., 2–59 (Academic Press 1981).
Buller and Burgoon maintain a less restrictive definition of deception, characterizing the act “as the intent to deceive a target by controlling information (e.g., transmitting verbal and nonverbal messages
and/or manipulating situational cues) to
alter the target’s beliefs or understandings
in a way that the deceiver knows is false.”
Burgoon, supra, at 192.
There are many reasons why people are
motivated to deceive. The five primary
motivations are:
•
•
•
•
to save face;
to guide social interaction;
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
***
Confirmation of an interim or partial arbitration award by a district court generally
depends upon its finality. Where the interim award grants equitable relief, there are
five possible theories of finality upon which
a petition for confirmation can be based.
Even where the interim award does not
grant equitable relief, confirmation may
still be sought if the award covers the bifurcated, separate or only claim. Since arbitration awards do not become judgments unless and until a district court says so, finding the right “hook” for finality is key to
deriving the full benefits from arbitration.
Conversely, knowing when an award is
final protects a party—and its lawyers!—
from missing limitation bars for confirmation or vacatur. It is critically important to
recognize that an arbitration can be over
Q
before it is completed.
DOI 10.1002/alt.20137
(For bulk reprints of this article,
please call (201) 748-8789.)
•
to avoid tension or conflict;
to affect interpersonal relationships;
and
to achieve interpersonal power. See
Turner, supra.
A follow-up study concluded that lies
are motivated by a need to defend oneself
socially or economically in a disadvantaged
situation, supporting the notion that deceivers act with purpose and specific motivation. See Hample, supra.
Within the negotiation context, some
practitioners would argue that deception
and lies are commonplace because negotiations are based on information dependence. Schweitzer, M. E. “Negotiators Lie,”
VOL. 24 NO. 7 JULY/AUGUST 2006
Harvard Negotiation Journal 3–5 (December 2005). In other words, negotiators
have little choice but to rely on the data
and claims that their counterparts provide
in order to reach agreement. To do otherwise would require verification of each and
every statement made and position proffered, which would be both highly time
consuming and likely cost prohibitive. Id.
Deception takes place practically all
around us—and most certainly across the
negotiating table. The question remains
as to how best to deal with this predicament in negotiations. You may be thinking that with all the trial and negotiation
experience you have, it is unlikely that an
adversary could successfully pull a fast
one on you.
Although you may be the exception to
the rule, there is substantial evidence that
most people have poor ability to recognize
deception. See, e.g., Burgoon, J. K., Buller,
D. B., Ebesu, A. S. & Rockwell, P., “Interpersonal Deception: V. Accuracy in Deception Detection,” 61 Communication
Monographs 303–325 (1994); Bauchner, J.
E., Kaplan, E. A. & Miller, G. R., “Detecting deception: The relationship of available information to judgmental accuracy
in initial encounters,” 6(3) Human Communication Research 253–264 (1980); DePaulo, B. M., Stone, J. J. & Lassiter, G.
D., “Deceiving and detecting deceit,” in
Schlenker, B.R. , ed., “The Self And Social Life” 323–370 (McGraw-Hill 1985);
Kalbfleisch, P. J., “Accuracy in deception detection: A quantitative review,”
unpublished doctoral dissertation, 45
Dissertation Abstracts International
46112B (Michigan State University
1985); Kraut, R.E., “Humans as lie detectors: Some second thoughts,” 30 Journal of Communication 209–216 (1980);
Miller, G. R. & Stiff, J. B., “Deceptive
Communication” (SAGE Publications
1993); O’Sullivan, M., Ekman, P. &
Friesen, W. V. “The effect of comparisons on detecting deceit,” 13 Journal of
Nonverbal Behavior 203–215 (1988).
The reason for this is that most of us
harbor a belief that truthful statements are
preferable to lies. Bok, S., “Lying: Moral
Choice in Public and Private Life.” (Vintage 1978). As a result of this bias, we often will unwittingly assume that the information we are being provided is accurate,
relevant and truthful. Buller, D. B.,
Strzyzewski, K. D. & Hunsaker, F. G.,
ALTERNATIVES 121
“Interpersonal Deception: II. The inferiority of conversational participants as deception detectors,” 58 Communication Monographs 25–40 (1991); McCormack, S. A.
& Parks, M. R., “What women know that
men don’t: Sex differences in determining
the truth behind deceptive messages,” 7
Journal of Social and Personal Relationships
107–118 (1990); Zuckerman, M.,
Spiegel, N. H., DePaulo, B. M. & Rosenthal, R., “Nonverbal strategies for decoding deception,” 6 Journal of Nonverbal Behavior 171–187 (1982).
If, however, we learn to identify the
verbal and non-verbal cues that often accompany deceptive messages, rather than
merely relying on hunches or our experience as practitioners in the field, we can
significantly improve our ability to detect
deception.
INTERPERSONAL
DECEPTION THEORY
Interpersonal Deception Theory, proposed
by researchers Buller and Burgoon in the
1980s, deals with deception as it occurs in
interpersonal situations. Buller, D. B. &
Burgoon, J. K., Interpersonal deception
theory, 6 Communication Theory 203–242
(1996).
IDT presumes that deceivers strategically control their behaviors to maximize
their deception success and credibility
with others. Evidence suggests that during
the course of a conversation, deceivers adjust to the reactions of others so that their
communication style appears truthful.
Burgoon, J. K. & White, C. H., “Adaptation and Communicative Design: Patterns
of interaction in truthful and deceptive
conversations,” 27 Human Communication Research 9–37 (2001).
Examining the interaction from this
perspective, the deception volley goes
something like this: Deceivers choose from
an array of verbal and nonverbal behaviors
designed in their mind to increase the
chance of succeeding at the deception. In
return, those on the receiving end react to
the deceptive message, whether consciously or subconsciously, sending signals of
suspicion. As deceivers perceive this suspicion, they in turn refine their performances to suppress such cues, working on allaying suspicion and enhancing their credibility. Burgoon, J. K. & Floyd, K., “Testing
for the motivation impairment effect during deceptive and truthful interaction,”
64(3) Western Journal of Communication
243–267 (2000).
Despite popular belief, deception is
not easy and actually requires a great deal
of emotional, cognitive and psychological
effort, believed by researchers to be triggered by feelings of guilt, discomfort or
fear of detection that often accompanies
the lie or deceit. Ekman, P. & Friesen, W.
V., “Nonverbal leakage and clues to deception,” 32 Psychiatry 88–106 (1969).
Consider the last time you told a fib.
(If you can’t think of one, check your
pulse). Thinking back to that time, it’s
likely that you became somewhat nervous, had to think hard before stating the
lie, considered the consequences of being
discovered, and tried at the same time to
come across as sincere and believable to
your counterpart. All of this requires considerable cognitive complexity. If you are
someone who can repress signs of nervousness and stress and look natural under
even the most difficult of circumstances,
then you are more apt to be a successful
liar. Vrij, A., Edward, K., Roberts, K. P.
& Bull, R., “Detecting deceit via analysis
of verbal and nonverbal behavior,” 24(4)
Journal of Nonverbal Behavior 239–263
(2000). Individuals who have larger behavioral repertoires, greater social skills
and communicative competence generally will be more proficient, alert, confident, and expressive, and less fidgety,
nervous and rigid, making them more
skilled at deception than others. Burgoon, J. K., Buller, D. B., White, C. H.,
Afifi, W., Buslig, A.L.S., “The role of
conversational involvement in deceptive
interpersonal interactions,” 25(6) Society
for Personality and Social Psychology Inc.
669–686 (1999).
Since truth-telling is considered preferable to telling lies (see Bok, supra), most
people are not well-practiced liars and as
such will need to work hard to control the
undesirable feelings associated with deceiving another. In their strained attempt
to look credible, they cannot help but reveal cues that reflect their deceptive behavior, commonly referred to in IDT literature as “leakage.” Ekman, P., supra. The
term leakage refers to the unintentional
outward display of the psychological
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
(continued on next page)
122 ALTERNATIVES
VOL. 24 NO. 7 JULY/AUGUST 2006
(continued from previous page)
THE AUTHORS TAKE ON THE ABA’S VIEW OF DECEPTION
processes experienced by the deceiver
while telling the lie. Zuckerman, M., DePaulo, B. M. & Rosenthal, R., “Verbal and
nonverbal communication of deception,”
in Berkowitz, L., Ed., 14 “Advances in experimental social psychology,”1–59 (Academic Press 1981).
A key IDT principle is that deceptive
performances include both non-strategic
—unintentional “leakage”—displays and
strategic, or deliberate, displays. They are
categorized into three management classes: information, behavior, and image.
Burgoon, J.K., Buller, D.B., Guerrero,
L.K., Afifi, W.A. & Feldman, C.M., “Interpersonal Deception: XII. Information
management dimensions underlying deceptive and truthful messages,” 63 Communication Monographs 50–69 (March
1996). Information management deals
with regulating the amount of information conveyed by the deceiver. Buller, D.
B. & Burgoon, J. K., Interpersonal deception theory, 6 Communication Theory
203–242 (1996). Behavior management
addresses the deceiver’s attempt to control
his or her nonverbal behaviors to minimize suspicion.
Finally, image management refers to
the efforts of the deceiver to continually
project a “positive face.” Id. Although it’s
expected that deceivers will try not to let
these strategies show, overdoing it by trying too hard will likely backfire, causing
the deceiver to look overly restrained, uninvolved and unnatural. Id.
REDUCING THE ODDS
OF BEING DECEIVED
Consistent with the views of deception
promulgated by IDT, outlined below is
the various verbal and nonverbal cues categorized either as strategic or non-strategic. The outline provides a handy arsenal
that should assist in ferreting out the deceivers from the truth-tellers at the negotiating table.
Non-Strategic Cues: Individuals engaged in deception can be expected to display the following involuntary leakage
cues resulting from their agitation, emotions and cognitive effort:
1. Increased pupil dilation—Deceivers’
Editor’s Note: In May, the American Bar Association’s Standing Committee on Ethics
and Professional Responsibility issued Formal Opinion 06-439, “Lawyers’ Obligation of Truthfulness When Representing a Client in Negotiation: Application to
Caucused Mediation.” See an ADR Brief in this issue on Page 124. Co-author Jeffrey Krivis’s “The Truth About Using Deception in Mediation,” 20 Alternatives 121
(July/August 2002), was cited in the eight-page opinion. Here is Krivis’s and Mariam Zadeh’s reaction to the new ethics opinion:
We are comforted that the Ethics Committee concludes in Formal Opinion 06-439
that statements of “puffery” and “posturing” are not false statements of material fact
and therefore do not violate Model Rule of Professional Conduct 4.1.
The committee correctly recognizes that these types of assertions run rampant,
are expected in mediation, and are not customarily relied upon by the parties to the
negotiation. In stark contrast, misrepresenting the existence of witnesses or favorable
documentary evidence is clearly a false statement of material fact and in obvious violation of Rule 4.1.
The shortfall of the opinion in our view lies in the subtleties of the committee’s
interpretation of Rule 4.1. Specifically, we respectfully take issue with the opinion’s
holding that “a party’s actual bottom line or the settlement authority given to a lawyer
is a material fact,” the false representation of which is prohibited by Rule 4.1.
The fallacy of this conclusion is the assumption that a party’s “actual bottom
line” is static. The reality, however, is that a party’s bottom line is fluid and everchanging, depending on a multitude of factors from the information and figures being exchanged to the sentiments of the parties at that moment. Oftentimes an attorney may state, for example, that the client’s bottom line is $100,000—only to settle moments later for $95,000. Does this mean the attorney violated Rule 4.1
because he or she made a false statement of material fact (i.e., the “actual bottom
line”) to a third person, the mediator?
As we understand Formal Opinion 06-439, the committee would answer this
question in the affirmative. Under this scenario, mediators and advocates may find
themselves shying away from these types of “bottom line” discussions hoping to
avoid the quagmires created by Rule 4.1.
—Jeffrey Krivis and Mariam Zadeh
pupils tend to widen as they would in
dim lighting. O’Hair, H.D., Cody,
M.J. & McLaughlin, M.L. “Prepared
lies, spontaneous lies, Machiavellianism, and nonverbal communication,”
7 Human Communication Research
325–339 (1981).
2. Blinking—Deceivers tend to blink
more frequently when compared to individuals telling the truth. Ekman, P.,
Friesen, W.V., O’Sullivan, M. &
Scherer, K.R., “Relative importance of
face, body, and speech in judgments of
personality and affect,” 38 Journal of
Personality and Social Psychology
270–277 (1980); Riggio, R. E. &
Friedman, H. S., “Individual differences and cues to deception,” 45(4)
Journal of Personality and Social Psychology 899–915 (1983).
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
3. Eye shifting—Deceivers will tend to
look away, up, down, or to the side,
rather than at the person they are addressing. Hocking, J.E., Bauchner,
J.E., Kaminski, E.P. & Miller, G.R.,
“Detecting deceptive communication
from verbal, visual and paralinguistic
cues,” 6 Human Communication Research 33–46 (Fall 1979).
4. Self-adaptors—Deceivers tend to use
their hands to fondle or manipulate
objects or parts of their body. Ekman,
P. & Friesen, W.V., “Hand movements,” 22 Journal of Communication,
353–374 (1972); McClintock, C.C.
& Hunt, R.G., Nonverbal indicators
of affect and deception in an interview
setting,” 5 Journal of Applied Social
Psychology 54–67 (1975).
5. Elevated speaking pitch—Deceivers
VOL. 24 NO. 7 JULY/AUGUST 2006
tend to speak at a higher pitch as compared to someone telling the truth.
Ekman, P., Friesen, W. V. & Scherer,
K., “Body movements and voice pitch
in deceptive interaction,” 16 Semiotica 23–27 (1976); Streeter, L.A.,
Krauss, R.M., Geller, V., Olson, C. &
Apple, W., “Pitch changes during attempted deception,” 35 Journal of
Personality and Social Psychology
345–350 (1977).
6. Speech errors—Deceivers tend to use
non-fluencies such as “uh,” “ah,”
“um,” or “mm.” Cody, M. J., Marston,
P. J. & Foster, M., “Deception: Paralinguistic and verbal leakage,” in R.
N. Bostrom & B. H. Westley (Eds.), 8
Communication Yearbook 464–490
(Sage Publications 1984); de Turck,
M.A. & Miller, G.R., “Deception and
arousal: Isolating the behavioral correlates of deception,” 12 Human Communication Research 181–201 (December 1985).
7. Speech pauses—Deceivers tend to allow greater periods of silence in between utterances while engaged in a
conversation. See Cody, supra.
8. Negative statements—Deceivers tend
to use words like “no,” “not,” “can’t,”
and “won’t.” Mehrabian, A. “Orientation behaviors and nonverbal attitude
communication,” 17 Journal of Communication 324–332 (1967); Wiener,
M. & Mehrabian, A., “Language
Within Language: Immediacy, A
Channel In Verbal Communication”
(Prentice-Hall 1968).
9. Leg gesturing and swiveling in
chairs—Deceivers tend to have more
leg twitches, tapping feet, and will either swivel or rock when sitting.
Buller, D. B. & Aune, R. K., “Nonverbal cues to deception among intimates, friends and strangers,” 11 Journal of Nonverbal Behavior 269–290
(1987).
10. Less hand and head gesturing—Deceivers “speak” less with their hands
and tend to keep their head still. Ekman, P., Friesen, W. V. & Scherer, K.,
supra, 16 Semiotica 23–27.
Strategic Cues: Deceivers can be expected to display the following behavioral, image or information management cues intended on improving their chances of deception success:
ALTERNATIVES 123
1. Intentional communication of vagueness. Buller, D. B., & Burgoon, J. K.,
supra Communication Theory; Burgoon, J. K., & Buller, D. B., supra,
Journal of Nonverbal Behavior; Burgoon, J.K., Buller, D.B., Guerrero,
L.K., Afifi, W.A. & Feldman, C.M.,
supra, 63 Communication Monographs
50–69.
2. Withdrawal from the conversation.
Buller, D. B., & Burgoon, J. K., supra
Communication Theory; Burgoon, J.
K., & Buller, D. B., supra, Journal of
Nonverbal Behavior; Burgoon, J.K.,
Buller, D.B., Guerrero, L.K., Afifi,
W.A. & Feldman, C.M., supra, 63
Communication Monographs 50–69.
3. Attempts to maintain a positive image
to avoid detection. Buller, D. B., &
Burgoon, J. K., supra Communication
Theory; Burgoon, J. K., & Buller, D.
B., supra, Journal of Nonverbal Behavior; Burgoon, J.K., Buller, D.B., Guerrero, L.K., Afifi, W.A. & Feldman,
C.M., supra, 63 Communication
Monographs 50–69.
4. Speaking in a less immediate or more
distancing manner. Kuiken, D., “Nonimmediate language style and inconsistency between private and expressed
evaluations,” 17 Journal of Experimental Social Psychology, 183–196 (1981);
See Mehrabian, supra.
5. Use of irrelevant information in their
messages by making statements that
are unrelated to the theme of the message. Knapp, M.L., Hart, R.P. & Dennis, H.S., An exploration of deception
as a communication construct, 5 Human Communication Research 270–285
(1974).
6. Use more generalities and “allness”
terms, for example, “all,” “none,” “nobody,” “everyone,” “always,” “never.”
Id.
7. Speaking for shorter lengths of time,
allowing the deceiver to disclose less
information. Id.; Kraut, R. E., “Verbal
and nonverbal cues in the perception
of lying,” 36 Journal of Personality and
Social Psychology 380–191 (1978).
8. Frequent use of modifiers, such as
“some of the time” and “usually.” DePaulo, B.M., Stone, J.I. & Lassiter,
G.D., “Deceiving and detecting deceit,” in B. R. Schlenker, Ed., “The
Self And Social Life” 323–370 (McGraw-Hill 1985);
9. More group references and fewer selfreferences (e.g., “we” and “us” vs. “me”
and “I”). See Knapp, supra.
10. Use longer response latencies allowing
the deceiver additional time to prepare
successful deceptive answers. Rockwell, P., Buller, D. B. & Burgoon, J.K.,
“The voice of deceit: Refining and expanding vocal cues to deception. 14(4)
Communication Research Reports
451–458 (1997).
THE BOTTOM LINE
Deception is a reality at the negotiating
table, whether we like it or not. It is unlikely that negotiation participants will
ever come to the table willing to openly
share the weaknesses of their position or
candidly disclose their bottom line. Becoming familiar with the signs—strategic and non-strategic—that are displayed by deceivers undoubtedly will
improve your ability to discern the
truth, or lack thereof.
These cues will provide you with a
roadmap when faced with the situation
where your adversary claims that they’ll
leave the negotiation unless you pay more
or take less, or conceals facts that help
your case and hurt theirs, or misrepresents whether they have the authority to
reach a deal.
A word of caution while deception
hunting: If you approach your negotiations with a heightened sense of vigilance
and motivation to detect the truth, your
state of doubt and distrust is likely to be
quickly identified by the sophisticated
deceiver. Once he or she picks up on
your suspicions, the deceiver will attempt to manage his or her behavior in
order to reduce and mask the cues that
might reveal the deception. Buller, D. B.,
& Burgoon, J. K., supra Communication
Theory; Buller, D. B., Strzyzewski, K. D.
& Comstock, J., “Interpersonal deception: I. Deceivers’ reactions to receivers’
suspicions and probing,” 58 Communication Monographs 1–24 (1991). To remain ahead of the deceiver, continue
your vigilance toward their deceptive tactics but conceal your suspicions as much
as possible.
Q
Published online in Wiley InterScience (www.interscience.wiley.com).
Alternatives DOI: 10.1002/alt
DOI 10.1002/alt.20134
(For bulk reprints of this article,
please call (201) 748-8789.)
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