Bargaining with Consequences: Leverage and Coercion in Negotiation

56 Pages Posted: 12 Apr 2013 Last revised: 28 Feb 2014

See all articles by Paul F. Kirgis

Paul F. Kirgis

St. John's University School of Law; University of Montana - Alexander Blewett III School of Law

Date Written: February 9, 2014

Abstract

Leverage has been called “negotiation’s prime mover,” conferring power to reach agreement “on your terms.” This power, however, is not always benign. When a negotiator has sufficient power to compel a counterparty to accept a set of unfavorable terms, the use of leverage may cross a line into inappropriate or illegal coercion. While coercion has been the subject of rich philosophical investigation, the topic of coercive power has received only cursory treatment in the negotiation literature. This article seeks to fill that gap by analyzing the uses and limits of negotiating leverage, which I define as power rooted in consequences. I identify two types of leverage — positive and negative — and explore the legal and ethical implications of each type, drawing on the political theory of coercion as well as primary and secondary legal sources. I conclude by analyzing the contract doctrines of duress and unconscionability to show how an understanding of leverage can aid in the application of legal rules.

Keywords: negotiation, leverage, coercion

Suggested Citation

Kirgis, Paul F., Bargaining with Consequences: Leverage and Coercion in Negotiation (February 9, 2014). Harvard Negotiation Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2247645

Paul F. Kirgis (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States

University of Montana - Alexander Blewett III School of Law ( email )

Missoula, MT 59812-0002
United States

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