Civil Negotiation and Mediation Blog

Emotion in Negotiation: Harvard Professor Michael Weaver

Posted by Nancy Hudgins on Thu, May 3, 2012

emotion in negotiation the elephant in the room

Emotion in negotiation is always a factor.  The other party’s emotions.  The other attorney’s emotions.  Your client’s emotions.  Your emotions.  Planning for emotion should be part of your mediation preparation.  We’re all human.  Their emotions or our emotions can unintentionally lead to impasse in mediation. 

Harvard Business School professor Michael Wheeler has been studying emotion in negotiation.  The Harvard Program on Negotiation (PON) has scheduled a webinar with Professor Wheeler for May 10, 2012, entitled Steps to Understanding and Effectively Using Emotions in Negotiations.

Here’s a preview of key points from PON:

"1. Balance. Successful negotiators are calm but alert. Patient and proactive. Creative, yet firmly grounded. Maintaining those feelings and attitudes in proper proportion is just as important as mastering the substance of the negotiation.

2. Attunement. Getting in synch with counterparts is essential. If they are defensive and hostile, everyone is dragged down.

3. Influence. Emotions are contagious. When we bring anxiety to the bargaining table, others sense it. Conveying optimism is in our interest.

4. Resilience. Self-awareness is key: We need to know our own hot buttons and how to recover when others push them.

5. Satisfaction. Knowing what we want to feel at the end of negotiation helps us to get there."

I've had the pleasure of hearing Professor Wheeler speak.  You can sign up for the webinar here

(Emotion, the-elephant-in-the-room.  I'm re-using the photograph.  Photoshopped it myself!)

Persuasion in Negotiation: Showing, Not Telling

Posted by Nancy Hudgins on Tue, May 1, 2012

persuasion in negotiation showing not telling

A persuasion case study from my trial files.

A young man was diagnosed with Type II juvenile diabetes in his teens.  Despite countless admonitions from physicians, dieticians and nurses, he was non-compliant with his diet.

In his twenties, he did something illegal (I can’t remember what) and was jailed.  In the jail, a family physician diagnosed diabetic retinopathy for the first time.  Plaintiff contended that the physician committed malpractice for not diagnosing it sooner (even though plaintiff had been followed by an ophthalmologist).  I represented the company that placed the physician.

The jail kept records of all the snack food that plaintiff bought at the jail’s commissary during the six months he was incarcerated.    Plaintiff bought a lot:  moon pies, pork rings, top ramen, Kit Kats, Hershey bars, you name it.  I put the commissary records into evidence.  At the suggestion of a co-defendant, I decided to show, not tell, the jury what plaintiff had bought.  The argument went to plaintiff’s contributory negligence.

My closing argument was scheduled for a Monday.  I sent my paralegal out to buy every single item on plaintiff’s commissary list.  It took him all weekend, as he had to go to multiple stores to purchase everything on the list.  The junk food was mounded on my kitchen table.  I decided the jury needed to see it in a familiar container.  I had an oversized, lattice-worked laundry basket.  Perfect.  The jury could see the junk food through the plastic lattice work and there was so much food I could mound it on the top.

During closing argument, I put the basket mounded with junk food on a table in front of the jury.  (I even staggered, unintentionally, under its weight.)  I was watching a young juror in the front row who was studying to be a nutritionist.  This marked the first time I actually saw someone’s eyes grow as big as saucers.

I could have reminded the jury in closing to review the commissary records, which had been marked as an exhibit.  Instead, I showed them what they represented.

When you negotiate, think of ways to show what you mean.  It’s a persuasive way to make your point.  Try it at your next mediation.

Mediation Preparation: Evaluating the Settlement Value of Your Case

Posted by Nancy Hudgins on Mon, Apr 23, 2012

mediation preparation settlement value

An important component in preparing your clients for mediation is evaluating the case value for settlement.  For your clients to be able to make informed decisions about settlement figures proposed by the other side, they will need to know what to compare them against.  Otherwise, they are making decisions in a vacuum.

In my law practice, I used the following simple formula when advising my clients:

Multiply the expected jury award by the percentage chance of losing (for defendants) or winning (for plaintiffs) at trial.  For instance, if I represented the defendant and I thought that if the plaintiff prevailed at trial, the jury would award him between $600,000 and $700,000, and that my client had a 20% chance of losing, then the settlement value of that case is between $120,000 and $140,000.  If I represented the plaintiff, I would multiply the expected jury award by the chance of success at trial and subtract the additional litigation costs between the mediation and the end of trial.  For instance, if the expected jury award were between $600,000 and $700,000, and my client had an 80% chance of winning, then the settlement value of the case is between $480,000 and $560,000, minus the $60,000 in prospective costs and expert fees between the mediation and the end of trial, for a settlement range between $420,000 and $500,000.

Robert Mnookin, the director of the Harvard Negotiation Research Project and a law professor at Harvard, has a more refined analysis in his book, Beyond Winning

He calculates the expected outcome times the chance of success at trial on each issue that will bear on the outcome.  This inevitably creates a more realistic number, and for plaintiffs he includes a calculation of the time value of money.

Every jury trial contains uncertainties:  in how the judge applies the law, in how the facts come in, in how well the experts will testify, in how well the other side’s lawyer tries the case, in how the jury will react, etc.  Factoring in these risks in an objective, quantifiable way is helpful in understanding the settlement value of a case.  Once you have this number, you can plan your negotiation strategy.

Ten Common Negotiation Mistakes

Posted by Nancy Hudgins on Thu, Apr 19, 2012

Negotiation Genius

Harvard Business School professors Deepak Malhotra and Max Bazerman wrote one of my favorite negotiation books:  Negotiation Genius.  There are many powerful negotiation strategies in this book.  They also point out seven common mistakes that negotiators make:

“1. You made the first offer when you were not in a strong position to do so.

2.   You made a first offer that was not sufficiently aggressive.

3.   You talked but did not listen.

4.   You tried to influence the other party but did not try to learn from them.

5.   You did not challenge your assumptions about the other party.

6.   You miscalculated the ZOPA (zone of possible agreement) and did not re-evaluate it during the negotiation.

7.   You made greater concessions than the other party did.”

Three additional mistakes I’ve seen as a mediator are:

8.   You did not prepare sufficiently for the mediation, so you didn’t have all the information you needed to settle the case.

9.   You did not prepare a concession strategy.

10.   You let your emotions dictate your moves, so that you were reactive instead of proactive.

It’s an interesting list.  The mistakes cover every phase of a negotiation, from insufficient preparation, to where to start the negotiation, to information gathering, to inflexibility, to concession strategies, to emotion (the elephant in the room).  As a lawyer, I’ve made all of these mistakes at one time or another. You can improve your mediated outcomes and mediation skills by avoiding these mistakes.

What would you add to this list?

Civil Litigation Mediation: Making Money Talk

Posted by Nancy Hudgins on Mon, Apr 16, 2012

civil litigation mediation making money talk

J. Anderson Little, a North Carolina mediator with 20 years of experience in civil litigation mediation, has written a terrific book on mediation called Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes.

Initially Andy introduces the reader to a typical rear-ender case.  After 12 rounds of proposals, the parties settled.

“At the end, the participants signed the agreement, wrote their checks, said their good-byes, and went their separate ways.   Their interaction was courteous but stiff.  Although an agreement had been reached at mediation, no one was particularly happy with the settlement or the difficulty with which it was reached.”

“This was a once-in-a-lifetime experience for [plaintiff].  He would not have an opportunity to see or speak with the people on the defendant’s team again…. “

“The members of the defense team were professionals.  For them, this was just one more automobile accident, one more claim, and one more negotiation.”

This captures the essence of personal injury litigation mediations.  Andy argues that facilitative mediators can play a productive role in these types of “one-off” cases where it's likely the parties will not see each other again.

“In the position-based bargaining that goes on in a civil trial court mediation, the mediator’s chief aim is to help the parties overcome their reactivity, refrain from stopping prematurely in reaction to the other side’s proposals or in reaction to their own pessimism about the prospects of settlement, make thoughtful rather than reactive proposals, and continue moving through ranges until they reach their best numbers or are sure that their best numbers will not settle the case.”

Andy outlines a method to help hard bargaining lawyers or their clients get out of their own way so their case can settle.

This is not just a book for mediators.  It’s a book for every lawyer involved in civil litigation mediation.  Gain insights into negotiation strategies that can improve your mediated outcomes.  Since less than 2% of cases go to trial, the acquisition of mediation skills can help you shine as a lawyer.

Divorce Mediation: Staying Positive

Posted by Nancy Hudgins on Thu, Apr 12, 2012

divorce mediation stay positive

As part of your divorce mediation preparation, consider being, and staying, positive.

(Speaking from experience) divorce turns your world upside down.  It forces you to re-think your assumptions about the future and to reassess your goals.  While you are in the “thick of it” it can be daunting, even overwhelming at times.  It brings change, and change can be unsettling.

How you react to this change is something within your control.  You have a choice in how you think, and act, during your divorce.

If you choose to stay positive, not only will your own mood be improved, your children will have the advantage of good behavioral modeling.  In the same way, being optimistic about the future has advantages.  If your style is to be pessimistic when bad things happen to you, there is hope.  Martin Seligman, a professor of psychology at the University of Pennsylvania, has devoted his professional life to exploring optimism and pessimism and teaching optimism as a learned behavior.  His book, Learned Optimism, takes the jargon out of psychology and makes his ideas accessible to lay people.

Seligman suggests that people have an “explanatory style,” that is, the way they explain things to themselves when bad things happen.  Pessimists tend to see bad events as personal, pervasive and permanent.  For instance, if a pessimistic student flunks a test, he might say to himself, “I’m stupid (personal), I can’t do anything right (pervasive), and I will never change (permanent).”

If an optimistic student flunks a test, she might say to herself, “I know I can get better grades; I guess I should study more next time instead of talking with my friends."  In other words, to the optimist, this was a one-time occurrence based on distinct facts.  It’s not pervasive or permanent.

Seligman’s breakthrough insight was the notion that optimism can be learned.  It’s a matter of training yourself to catch your thoughts, reframe them, and talk to yourself more optimistically (and compassionately).  Check out his book and let me know what you think.

Persuasion in Mediation: Try Storytelling

Posted by Nancy Hudgins on Mon, Apr 9, 2012

persuasion in negotiation storytelling

Check out the little boy’s face.

Remember when you were a little kid listening to stories?  They can be mesmerizing.  Even for adults, for there is a child in each of us.  Somewhere.

Lawyers who try cases know that telling stories in opening statements and closing arguments is a compelling and persuasive way to influence juries.  As Annette Simons in The Story Factor puts it, when you are trying to influence a group, giving them more facts is just piling on more facts.  Jurors likely have more facts than they can process well.  She suggests:

“They don’t need more facts.  They need help finding their wisdom. . . .  A storywill help them figure out what all the facts mean.

As the best trial lawyers know, when you let jurors access their own wisdom to reach their own conclusions, they are more likely to own that opinion than when you tell them what their opinion should be.

Why not use the same process during mediation?  At times, mediations digress into a tug-of-war between the egos of opposing counsel and/or opposing parties.  Storytelling has the ability of making a point without setting off an ego war.  Ease them out of their point of view.

Again from Simmons:

 “You don’t have to convince people that they are wrong to influence them. . . . Letyour listener’s ego sleep.  Concentrate instead on providing a visceral experience ofa new story where new choices make more sense.  Don’t back someone into a corner. . . .Lead their conscious and subconscious minds on a tour of a different point of view. . . .Intrigue and activate their imagination.”

And finally, she asks, “Which is more important to you—being right or influencing others?”

If you are interested in the power of storytelling, check out The Story Factor.  Its subtitle is “Inspiration, Influence and Persuasion through the Art of Storytelling.

Divorce Mediation: Resist Pushing Their Buttons

Posted by Nancy Hudgins on Fri, Apr 6, 2012

divorce mediation resist pushing buttons

Divorce is one of the most difficult personal circumstances you can face.  It’s easy for your judgment to be clouded by anger, resentment, outrage, anxiety, and on and on.

This also makes it easy to lash out, either by being a bully, or being passive aggressive, or blaming, or just for the sake of retribution.

This is really hard, but it’s really important:  Try not to push your soon-to-be-ex’s buttons.  It may seem only fair to you to push them, after all, look what they have done to you.  But, ultimately, in the divorce mediation process, it’s a bad strategy.  Here’s why.

As part of your negotiation strategy, you want your soon-to-be-ex to be rational and have the ability to make good decisions.  If you push their buttons, one of two things will immediately happen:  they will become emotional, and may be unable to make decisions, or, they will become irrational, which might make them punitive, and certainly won’t make them willing to negotiate in a give-and-take manner with you. 

According to Stuart Diamond, a negotiation professor at the Wharton School of Business and author of Getting More, when people get emotional, their judgment is clouded, their creativity is limited, their decision-making is poor and their information processing ability is impaired.  Then they think of punishment, revenge and retaliation.  Ramping up emotion in negotiation is not your best move.

It may feel good to needle them, or twist the knife a little, or play Gotcha, but ultimately, it works to your disadvantage.  Be smart.  Don’t go there.  At least not if you want to get what you want out of the divorce.  To get what you want, you need them to be rational. 

Mediation Preparation: Strategize for the Joint Session

Posted by Nancy Hudgins on Mon, Apr 2, 2012

 Mediation preparation strategy

Whether you know in advance there will be a joint session or not, preparing for one just makes good sense.  The mediation process is flexible.  Joint sessions might take place initially, episodically, or near the end of a mediation.  As part of your mediation preparation, consider strategizing for the joint session.  It's a mediation skill you'll want to acquire.

Early in my mediation practice, I met a lawyer at a social function and we started talking about mediation.  He said, in horror, “You don’t do those joint sessions, do you?  I hate them.”  I’ve thought about this for a long time, and the best answer I have is that this lawyer had never been educated as to what can be accomplished at a joint session and probably had no negotiation training, and therefore, he was uncomfortable being in a joint session.

I see joint sessions as opportunity.  This is the only time during the pendency of a lawsuit that you get to talk directly to the other side in a non-adversarial setting.  It is also the only time that you get to hear directly from the other side.  Take advantage of it!  This is a mediation skill as opposed to a litigation skill.

I’m a proponent of listening.  As an advocate, listening can be a condition precedent to persuasion.  Stephen Covey has advocated this for years:  “First seek to understand; then to be understood.”  So consider listening first, asking curious questions and keeping an open mind.  The other side may reveal the solution for a settlement.

Stuart Diamond, negotiation professor at the Wharton School of Business, and author of Getting More, advocates considering the pictures in the other side’s heads.  What do they want?  Can you get them what they want while getting your client what he wants?  If you want to settle the case, the other side’s picture or view is important to you for this simple reason:  they have what you want.

When it’s your turn to speak, speak directly to the other side, not to their attorney.  What could you say, in lay terms, which would convince a layperson of your view?  Story, metaphors and analogies can be very helpful here.

Your clients may be all fired up to continue the fight, even at the mediation.  Let them know that the warrior they hired to represent them is prepared to do battle at trial, but that mediation requires a different skill set.  Studies show that antagonistic, adversarial tactics are rarely productive in a mediation.  Mediation skills include collegiality, cordiality and collaboration, which are more likely to be productive. 

Walk your clients through the likely sequence of events that will occur.  Let them know your expectation of their conduct is that they will be civil and cordial.  Tell them how you plan to proceed.  Remind them that patience is a virtue, especially during a mediation.

Impasse in Mediation: When You're Stuck, Ask Questions

Posted by Nancy Hudgins on Tue, Mar 27, 2012

impasse in mediation? ask questionsLawyers, in particular, are really, really good at spotting issues, marshaling facts and constructing arguments.  But, asking good questions to resolve a dispute?  Not so much.

Wharton School negotiation professor and author of Getting More, Stuart Diamond, notes, “[T]he single biggest cause of communication failure is misperception.  Further, he says:

“Often the things you hold so firmly and deeply are invisible to the other party—they don’t exist….So to persuade people with different perceptions, you must start with the notion that your ‘facts’—your ideas, thoughts and perceptions—are invisible to them.  What you see so clearly, the other party may not see at all.”

It stands to reason that if you are holding on to your ideas and they are invisible to the other side, that they are holding on to their ideas and those are probably invisible to you.  What to do?  Ask questions.

Diamond notes that one of the best problem solvers in TV history, Columbo, would ask, “Help me out here.  I’m confused…”  Try it yourself.  As Diamond says, “Isn’t it smarter to find out what they are thinking before making a decision about what to do?”

If you are at an impasse in mediation, you will want to find out what the other side is perceiving.  Too often, we assume we know.  Too often, we don’t know.  So ask.

Asking questions has several salutary effects:

  • It shows that you are interested in them and sets the table for persuasion
  • It helps you understand what Diamond calls “the pictures in their heads”
  • It doesn’t commit you to anything
  • It keeps the momentum for negotiation and resolution going

And here’s a bonus:  asking questions can elicit information you didn’t already have that you can use to settle the case.