Collaborative Negotiation Techniques: Three Practice Tips Backed by Social Science

Find something in common: “liking.” I went to a family camp this summer that organized children into different groups. In the lunch line one day, I saw two three-year-olds spontaneously hug each other, looks of pure joy on their faces. I thought they must be close friends or cousins. The mother of one explained that they had just learned they were both in the “Munchkins” children’s group that week. That small commonality caused them to feel close to each other. Their embrace was driven by the realization that they were, in a small way, the same. Cialdini has traced this trigger to our desire for social conformity. Similarities are familiar, and familiarity creates rapport and comfort.

In my own negotiations, I have found that if opposing counsel and I have something in common, our negotiations will proceed more smoothly. In the Internet age, information about your opposing counsel is readily available. Perhaps your opponent went to your law school or college. You may know people in common, or have worked on similar cases. Even family interests can strike a common note. I once worked on a case with a lawyer who was a former child star on Broadway. I used that information as an ice breaker and was able to share that theatre was an interest of one of my children, building rapport.

This technique seems obvious, but it works. As Fisher and Ury acknowledge in Getting to Yes, if there is rapport in the beginning, your negotiations will go more smoothly later. A small investment in knowing your audience, on both sides, will more likely lead to positive outcomes.

Give a gift: reciprocity. A compelling study on reciprocity examined how providing an after-dinner candy with the check affected a waiter’s average tip. David B. Strohmetz et al., “Sweetening the Till: The Use of Candy to Increase Restaurant Tipping,” 32 J. Applied Soc. Psychol. 300 (2002). Waiters who provided a candy with the check received higher average tips than waiters who did not. Waiters who gave one candy received average tips 18 percent higher than waiters who gave no candy. Waiters who offered customers a second candy received average tips 21 percent higher than waiters who gave no candy.

According to the research, a feeling of reciprocity is triggered when people are offered something tangible without any requirement of repayment. Cialdini suggests that this has to do with cooperation being necessary to sustain human societies. People who did not cooperate and reciprocate did not survive, and this has been ingrained in humans across cultures.

In the context of a lawsuit, small concessions are possible, especially early on. Does your opposing counsel need a deadline extension? Do they want more pages in a response brief? These are usually concessions that you can give without consequences to your client. Making a small compromise can create goodwill and a spirit of reciprocity that is likely to continue as your case proceeds.

Communicate in person. When I began handling consumer protection cases, the standard approach for communicating settlement offers was an opening offer letter. I realized early that communicating in person could be much more effective. In our era of short attention spans, wading through a 20-page offer letter can be tedious for the lawyers and decision makers alike. This is not to say you should not conduct a well-reasoned legal analysis of your case. But if you can present it in person to the other side, you should. You can always follow up with the letter, or provide one at the meeting.

Other professionals with sales-related jobs have already adopted this technique. Real estate agents are loathe to give you an offer over the phone. They present it in person because they know it will be more compelling and they can be more persuasive. If you are presenting live, you can modulate the pace and emphasis of the information, and also observe your opponents’ reactions to your case. You will also be building rapport, which, as discussed above, will improve your ability to communicate your mutual interests.

Assemble the stakeholders. I also like to get all the key players in the room. Are you representing multiple decision makers? Who will be making decisions about the case for the other side? Getting the stakeholders together ensures your message gets to the right people, and allows you a glimpse into your opponents’ decision-making process. You may be negotiating with a smaller subset of parties later, but bringing all the parties together may provide better information upon which to base your negotiated solution.

Communicate visually. Prosecutors are taught the value of demonstrative evidence early in their careers. Juries like seeing the gun, the clothing, and other key evidence live. In the negotiation context, graphically displayed concepts are likewise much more vivid. There are now entire businesses devoted to teaching professionals to communicate in a more visual, compelling way.

Visual displays work because they appeal to more than one sense at a time. People are more likely to understand and retain the information. A study conducted by the Minnesota Mining and Manufacturing Company (3M) at the University of Minnesota established that using visual displays improved the effectiveness of the communication, the students’ perceptions of the presenter, and the speaker’s confidence. Douglas R. Vogel et al., “Persuasion and the Role of Visual Presentation Support: The UM/3M Study” (Univ. of Minn. Mgmt. Info. Sys. Research Ctr., Working Paper No. MISRC-WP-86-11, 1986).

In a recent food, drug, and medical device task force negotiation, we showed the CEO of a company a graphic display of the level of contaminants in his product compared to other companies’ products and to the legal standard. It was difficult to deny liability given the dramatic spike in his product’s contaminants compared to the others, and we successfully settled the case shortly after the meeting.