Also known as: tit-for-tat · tit for tat retaliation · retaliation · reciprocity
Written by attorneys — see sources below.
A negotiation strategy in which one party cooperates during the first round and thereafter matches the counterpart's approach from the immediately preceding interaction.
Timothy Tang attended a bank lobby meeting and heard the branch manager criticize lending practices. Tang responded with personally abusive epithets directed at the manager. When the manager replied with similar personal insults, the exchange escalated. The court later evaluated whether the initial epithets qualified as fighting words that could provoke immediate retaliation.
Tiffany Torres faced an aggressor who threatened serious bodily harm with a weapon. Torres used equivalent force that was neither intended nor likely to cause death or serious injury. The aggressor then escalated with greater force. The court assessed whether Torres's responsive level of force remained within the privilege of self-defense.
Trinity Pharmaceuticals and Titan Industries entered successive contract disputes. After Titan refused to arbitrate the first claim, Trinity declined to arbitrate the second. The court examined whether the parties' mirroring conduct affected enforceability of the arbitration agreements under federal law.
In each of three consolidated cases, an employer and an employee entered into a written contract specifying that disputes arising from the employment relationship would be resolved through individualized arbitration proceedings rather than in court. The agreements in the Ernst & Young case, for example, allowed the employee to select the arbitration provider and permitted the arbitrator to grant any relief a court could grant, but required that claims pertaining to different employees be heard in separate proceedings. After their employment ended, the employees filed suit in federal district court. They asserted claims under the Fair Labor Standards Act for unpaid overtime and related state-law claims, and they sought to litigate those claims on behalf of a nationwide class or collective group of similarly situated employees. In the Ernst & Young matter, junior accountant Stephen Morris filed such a suit after leaving the firm. The employers responded by moving to compel arbitration under the terms of the contracts. District courts in some of the cases granted the motions and ordered the employees to proceed in individual arbitrations. In the Ernst & Young case the district court compelled arbitration, but the Ninth Circuit reversed that order. Parallel proceedings occurred in the Seventh and Fifth Circuits, producing conflicting results on whether the arbitration agreements could be enforced. In 2012 the National Labor Relations Board issued its first decision addressing agreements of this type, concluding that the National Labor Relations Act rendered unlawful any contractual requirement of individualized arbitration. Before that Board decision, courts and the Board's own general counsel had treated such agreements as enforceable. The three cases reached the Supreme Court after the Court granted certiorari in 2017 to resolve the disagreement among the circuits and between the Board and several courts of appeals.
View caseThe strategy begins with cooperation in the first negotiation. Each subsequent round then copies the counterpart's choice from the prior round.
The party employing the strategy responds with the same adversarial approach in the next negotiation. This mirroring continues until the counterpart shifts back to cooperation.
Disclosure signals the intent to cooperate initially and to mirror future moves. It encourages the counterpart to begin with cooperation rather than competition.