What goes around, comes around.
We are taught from birth to repay favors, gifts, hospitality, etc.
(How many times have you said, “We need to invite the “so-and-so’s” over for dinner. We owe them...”?)
Robert Cialdini, a social psychologist at Arizona State University, is an international expert in this field. In Influence: The Psychology of Persuasion, he cites multitudes of studies. In one, a social scientist randomly chose names of strangers out of the phone book and sent them all Christmas cards. An astonishing number of these people sent him a Christmas card in return. He didn’t know them and they didn’t know him. Talk about perfect strangers!
In another study, two people were assigned a task to do jointly. One of them was a researcher. At some point, the researcher excused himself to go to the bathroom. In some instances, he returned with two Cokes, one for him and one for the experimentee. This was an unbidden favor. In other instances, he returned empty-handed. When the two completed the task at hand, the researcher asked the experimentee to buy some raffle tickets. The results: those who had been given a Coke bought twice as many tickets as those who had not.
The import is that extending favors can induce conduct you want because human beings feel a deep-seated need to reciprocate.
In a negotiation, what can you do to take advantage of our innate urge to reciprocate?
Little things come to mind.
- Be nice.
- Offer to pour coffee or water for everyone.
- Give out compliments.
- Express appreciation.
- Offer to lend a book or video.
- Ask for advice on an unrelated topic. (Parenting is one of my favorites. Who couldn’t use a little extra advice on parenting?)
There are, of course, more germane topics.
- Concede a point. (It doesn’t have to be a big point.)
- Find an area of agreement and express it. (Even a small area will do.)
This negotiation strategy makes it harder for the other side to stop negotiating. Moreover, not only will your mediation be more pleasant, it will also be more productive, as the other side will feel the need to make a concession in return, thus averting an impasse in mediation.
If you’re getting a divorce and you think you want to duke it out with your soon-to-be-ex, think again. There are three main drawbacks to divorce litigation. (Yes, this blog has a bias.) They are:
- Negative Impact on Children
- High Cost
- Negative Impact on You
Never underestimate the impact on your children that protracted litigation with your spouse will have. Your kids are already upset that your divorce is about to make a huge change in their lives. It’s also hard for them to hear one parent disrespect the other. You’re their parents. They love you. So take some time to think about what it will feel like to them for their parents to get into a bitter lawsuit.
Divorce litigation is not something to take lightly. It impacts your children’s future as well as their future behavior. Do you want them to wind up at the Betty Ford Clinic, or do you them to want see good behavior in the way you conduct yourself with their other parent? One thing is certain. Your children will be watching you.
Litigation is prohibitively expensive. Let’s say your divorce lawyer charges $400 per hour. Let’s say you’re angry and you want your lawyer to take your spouse’s deposition. Let’s say it takes your lawyer 10 hours to prepare for the deposition (lots of documents to review and time spent interviewing you on the facts) and 8 hours to take it. That’s almost $7,500. You may be able to negotiate a mediated settlement, and be done with it, for less money than it would take for one deposition.
Save your money for your post-divorce future.
As for the impact on you, in my experience, protracted conflict only gets more bitter, not less. Not only is that a lot of wasted energy, it’s backward looking instead of looking forward. Save your energy for something positive, like your post-divorce life.
I have divorce mediation offices in San Francisco, Burlingame and Palo Alto. You can check out my posts on divorce mediation and mediation preparation in the column to the right.
Peter Coleman has written a book called The Five Percent: Finding Solutions to Seemingly Impossible Conflicts. His premise is that 5% of all conflict is intractable. For we mediators, and our clients, I guess the good news is that 95% are not! Professor Coleman teaches psychology and education at Columbia University.
I haven’t finished reading the book, but I thought I’d mention 5 rules of thumb he gives for handling conflict:
- Whenever possible, cooperate.
- Be flexible.
- Do not personalize.
- Listen carefully.
- Be fair, friendly and firm.
These methods may be difficult for some lawyers to swallow in civil litigation. In some of my mediations, lawyers sometimes fight, can be inflexible, sometimes take the other side’s small moves personally and often forego the ability to listen carefully to the other side because they decide against having a joint session. If this sounds like you, I’m going to suggest that you practice negotiating outside of the mediation office, in your personal life, by starting out being fair, friendly and firm, and then following the rest of Coleman’s recommendations. This will also lessen the negative personalization, which creates emotion in negotiation and can lead to impasse in mediation.
Pay attention to the response of the people you’re negotiating with. If you are getting good responses, and negotiation outcomes you appreciate, then stick a toe in the water and try the same negotiation strategies at your next mediation. Here are the upsides: a proven method that works, a more civil mediation, and your reputation is enhanced. Not bad.
Professor Coleman points out that not all conflicts are bad, and suggests that we try to envision a world without conflict. His conclusion: “Even if it were possible, it would be so unbelievably tedious.” Not to mention the fact that a lot of lawyers would be unemployed!
Many parents worry about the effect of divorce on children. One of the best ways of modeling good behavior and conflict resolution skills for your children is to choose divorce mediation. (Forgive the plug!)
Lynn Ingrid Nelson, a Minnesota strategic communication consultant, has written an article called “10 Commandments of Co-Parenting.” The commandments are:
1. Resolve conflicts without putting kids in the middle.
2. Treat the other parent with respect.
3. Observe appropriate boundaries.
4. Communicate regularly with the other parent.
5. Demonstrate positive conflict resolution.
6. Share with your co-parent what you need from him or her to do a good job of parenting.
7. Don’t allow all of the parenting tasks to fall to one parent.
8. Be consistent.
9. Help your children recognize the other parent with appropriate gifts or cards.
10. Don’t punish your in-laws by keeping your kids from them after a divorce.
Nelson's premise is that children deserve the opportunity to be loved by both parents. Following these “commandments” can be hard for parents locked in conflict, but they are behaviors well worth striving for. Your children will be happier and more well-adjusted for your efforts.
There is some great advice in this article, which is just as apt for parents who are together as well as for divorcing parents. You can read it here.
I have divorce mediation offices in San Francisco, Burlingame and Palo Alto. I am also a Parenting Coordinator.
It’s about them.
I imagine this is very hard to hear.
One of the best, if not the best, negotiation tip I can recommend is to forget about you (and your client) for a moment. It’s not about you. It’s about them: the other party, your opponent, your negotiation adversary, your nemesis; however you want to characterize the person on the other side.
Stuart Diamond, Professor of Negotiation at the Wharton School and author of Getting More, encourages negotiators to start with this negotiation technique: consider the pictures in the other person’s head. I’m guessing this is a radical thought to some lawyers, as we are relentlessly trained to marshal the facts and argue for our client. While these tactics work well in writing and arguing motions and certainly at trial, different tactics are needed for successful negotiations.
In preparing for negotiation, Professor Diamond suggests that you begin by asking yourself:
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What is the other person feeling?
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How do they perceive the situation?
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What are the pictures in their heads?
If you don’t know the answers to these questions, Ask. As part of your mediation preparation, ask opposing counsel for her perceptions of how her client feels and where she thinks he’s coming from. At the mediation make use of a joint session to ask.
The prerequisite to persuasion is listening first. Once the other side feels heard and respected, they are more likely to listen to you. This negotiation advice is widely circulated. See, for example: Mark Goulston (Just Listen) and Stephen Covey (7 Habits of Highly Effective People). It’s curious to me that it is not widely followed by lawyers. You might consider adding this to your mediation skills.
Negotiating at a mediation, we would do well to remember this further advice from Stuart Diamond: “[R]emain focused on the other party. After all, they almost always have what you want,” which is, to settle the case. Great advice to avoid impasse in mediation.
From time to time, I interview professionals in the conflict resolution world. I was fortunate to catch up with Bryan J. Hanson, the Assistant Director of the Werner Institute for Negotiation and Dispute Resolution at Creighton University. The Werner Institute has established a fascinating online program for a Master’s of Science in Negotiation and Dispute Resolution. Here are Bryan’s answers to my questions.
1. Your online program offers diverse teaching methods such as distance learning, two 5-day residency programs at Creighton with hands-on role plays, simulations and group exercises, guided research projects and a practicum. What skills do you hope students will learn and how does the design of the program support and enhance their learning experience?
Our online program provides an innovative curriculum that heavily relies on virtual platforms to replicate the dialogue and activities that take place in a classroom environment. For example, students engage in weekly discussion forums, participate in group projects via online collaboration tools, and can participate in live discussions via web-conferencing platforms. (Here’s our website.) The online program also runs on a cohort model with a predetermined flow to the curriculum. Students will start in the foundations of conflict courses and proceed in a linear manner until they complete their practicum experience as the capstone to the program. We also have a residential degree program. You can find a list of our campus-based courses here.
2. You have a stellar faculty. How much students will be able to interact with them?
Our department is small, yet provides access to some very experienced and well -connected faculty members. We provide great value to the ability for our students to feel well connected with the entire staff and faculty at the Werner Institute. When in Omaha, our doors are always open, and when students are unable to meet in Omaha, we are available via phone, email and Skype.
Our online courses allow for constant engagement with our faculty. Dialogue that typically takes place in a classroom is replicated by weekly discussion forums that are led off by an initial line of inquiry provided by the faculty member. All students must participate to receive credit for the course and the faculty member has the opportunity to connect with each and every student this way.
Our online program also entails two 5-day residencies that bring students to Omaha to meet our faculty and engage in skill-building activities, practice negotiation, practice mediation skills, attend live lectures, and participate in networking opportunities that will increase the students’ ability for success once they enter the field.
3. The program offers some subspecialties--what are they and how can they be useful in the real world?
We offer the opportunity to diversify your education via four different specializations. They are
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Organizational Conflict Management: In today’s competitive environment, organizations increasingly must cope with complexities, uncertainties, and conflict. Students will learn techniques and approaches for organizational teambuilding, conflict management, and process facilitation and consulting.
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Collaboration and Conflict Resolution in Health Care: Conflicts in health care occur on a daily basis, many of which involve poor clinical outcomes that may result in lawsuits, licensure disputes, credentialing and employment claims, and more simply, a general breakdown in trust of the healthcare system as a whole. With a focus on practical application of process tools and systems design strategies, students will learn effective techniques that can be integrated into clinical settings and expand options for managing legal and ethical issues that arise within healthcare organizations.
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Collaborative Practice and Conflict Resolution in Education: In areas from special needs to student services, and administration to campus life, conflict is an ever growing part of the landscape. Students will learn how to collaborate with colleagues, students, parents, and community members to assist and develop strategies to accommodate diverse learners so that they can succeed and fulfill their potential.
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International Negotiation and Conflict Resolution: Disputes increasingly occur with an international dimension, including conflicts involving states, corporations, peoples, and political factions. With applications from a variety of disciplinary perspectives including international law, business, anthropology, and political science, students will learn conflict resolution techniques in the context of globalization with a focus on the implications of growing interconnectedness as both a source and solution for disputes.
4. What kind of career can an M.S. in Negotiation and Dispute Resolution launch? Where can students use the expertise they gain from this program?
The skills and concepts learned can lead to an exciting career as a practitioner in the field as a mediator, facilitator, trainer, or systems design consultant. A graduate will also be prepared to work in training and development.
One vitally important aspect of our interdisciplinary degree is that the skills and concepts learned in this program will lead our graduates down a path for success in any leadership position within an industry that aligns well with their interests and previous experiences. The graduates will be able to leverage their increased leadership skills, decision-making abilities, team development insights and understanding of conflict dynamics to succeed as program directors, business executives, and leaders of many non-profit and for-profit organizations.
As a mediator, I have spent a great deal of time training, reading and thinking about how best to listen to the parties. I spend a lot of time in mediations listening to the parties. I want the quality of my listening to be respectful, authentic and empathetic. I want to make a truly human connection.
It occurred to me to remind myself to bring that same intention to listening to my law clients.
Fortunately, Mark Goulston, M.D., a psychiatrist, business consultant and coach, has outlined his secrets of success in Just Listen. Essentially, Dr. Goulston’s premise can be summed up like this:
“The more your “get” where someone is
coming from (and care where they are
coming from) the more likely you’ll be
able to take them where you want them
to go.”
One of the impediments to deeply listening is our natural inclination to interrupt with a comment or with an analogy from our own experience. Dr. Goulston recommends reigning in that inclination, and instead, asking the speaker to continue speaking. He encourages them with three types of “interventions”:
- “Tell me more.”
- “Hmmm,” and,
- “Really?”
If you use these techniques with your clients, I think you’ll find that they will appreciate you all the more. Everyone is comforted by feeling heard and respected. (Thus, the cinnamon toast: comfort food.) You’ll have a much stronger connection. A by-product is, having felt heard, they are more likely to listen to you.
In the mediation context, negotiation challenges sometimes arise because we forget to listen. Increase your mediation skills by practicing listening.
All new techniques require practice. Choosing a loved one to practice this on could be a true win-win.
Malhotra and Bazerman, in Negotiation Genius, have some suggestions for dealing with anger from the other side in a negotiation.
When the other side is angry, and you can’t understand why, Ask. For instance, “It sounds like you’re angry. I’m not sure I get why. What’s going through your mind?”
Their response allows you to figure out whether they are angry because they are misinformed or feel disrespected or simply misunderstand your view of the situation. Once you know where the other side is coming from, your solution will be clearer.
Also, by allowing them to vent, and letting them know they’ve been heard, you buy good will and set the stage for the rule of reciprocity to work for you.
The next step is to sidestep the emotion. The critical thing to remember is that it’s not aimed at you. Don’t allow yourself to be the target. Instead, look at their position from their perspective. Would you have acted or reacted in the same way?
Malhotra and Bazerman say:
“Anger prevents people from staying focused on the substantive issues about which they care deeply. Your task is to help the angry negotiator shift attention away from those elements that fueled his anger and toward those elements that would fulfill his interests.”
A good way to react to their emotion is to ask questions that ask them to think about the future. “What would you like to see happen now? What would you rather be doing? What would help us put this behind us?” Etc.
There is almost always emotion in negotiation. What all of these prescriptions do is give you something constructive to do, rather than just react by getting angry in return.
As part of mediation preparation, really good negotiators try to set the frame of the negotiation by placing the issues in a context which furthers their negotiation strategy.
Once the negotiation begins, somewhere along the way, a party will get stuck, which sets up an impasse in mediation. The real art in negotiation comes in the re-framing of the other side’s negotiation point-of-view.
Re-framing is described by Jonathan Fields, in Uncertainty, as:
“[L]ooking at the facts, taking yourself out of the middle, and asking how you can view [the facts] in a different light, one that empowers you rather than shuts you down.”
Fields is talking about how you can create a new story about something that has happened to you that allows you to reframe it, so as to empower you, rather than paralyze you.
I’d like to suggest that you can use re-framing to influence the other side to create a new story that they tell themselves. This requires you to do what all negotiation experts recommend, but lawyers sometimes fail to do: consider the other side’s needs and interests. The reason is obvious: if you know their needs and interests, you can craft a settlement that meets some of theirs and some of yours. If you don’t know their needs and interests, you end up guessing what they want. Sometimes you’ll be right, but wouldn’t you rather be better informed when making counter offers?
You can re-frame their obstacles into challenges, your small moves into “at least they moved,” their frustration into curiosity, and their negativity into useful information. This gives the other side a different frame to look through: challenges, reciprocal negotiation moves, curiosity and useful information. It helps them to re-write the story in their head, making it more positive and therefore more likely to move them through impasse and into further negotiation.
The idea is to empower the other side, rather than shutting them down. Unfortunately, as lawyers we tend to want to prove we’re right by arguing (which we are trained to do), rather than by taking a larger view and letting the other side think they’re right. As a wise trial lawyer recently said, once we’re negotiating, we need to move from warrior mode to collaborative mode.
Social psychologists point to mounds of research to prove that likeability is a major component of persuasion (e.g., Cialdini, Influence:The Psychology of Persuasion). Management professors invoke research to show that civility is important to closing the deal (e.g., Conger, Winning ‘Em Over). Legal scholars cite multiple studies to prove that building rapport is the most important initial phase of a negotiation (e.g., Craver, Effective Legal Negotiation and Settlement).
If you think about it, even our grandmothers knew this: “You get more with honey than with vinegar.”
First impressions count and every negotiation begins there. Your initial tone sets the stage. If you are positive, respectful, and professional, you start out ahead. If you or your mediator prefer not to start with a joint session, make sure you introduce yourself to everyone on the other side. Welcome them. Thank them for coming. Shake hands and make small talk.
If you are negotiating face-to-face, think of small talk as an integral part of the negotiation. It’s never wasted. The best negotiator I know can spend an hour on small talk before he gets down to business. By the end of that time, the other side sees him as a human being, not as “the enemy.” He gets fabulous results.
Here’s how Stuart Diamond, negotiation professor at The Wharton School at the University of Pennsylvania, and author of Getting More, characterizes it: “Small talk is almost always big talk.”
If this notion of the power of small talk is foreign to you, or if you have never appreciated its value, take some time to prepare for this “phase” of the negotiation. Think about topics that will bring you and the other side together, instead of figuring out how to keep yourselves apart. Make this part of your mediation preparation. You will be laying the groundwork for a successful negotiation.