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September 08, 2016 Articles

Collaborative Negotiation Techniques: Three Practice Tips Backed by Social Science

By Tracy Hughes

Most lawyers have been exposed to negotiation courses or trainings that emphasize the “win-win” model of compromise as the best strategy for negotiating a case. This model, popularized by Roger Fisher and William Ury’s negotiation bible, Getting to Yes, emphasizes a need-based, open information approach to negotiated outcomes. My own experience is that this negotiation model leads to strong settlement agreements and facilitates positive professional relationships with opposing counsel.

And yet, while preparing a recent training about using these techniques, I realized that I had not yet won over some old-school colleagues who still perceived the collaborative model as “weak.” To help explain why these methods work, I looked to Dr. Robert Cialdini’s Influence: Science and Practice, a psychology textbook used in business schools to teach students about how marketing influences purchasing decisions. Cialdini, a recognized expert in social psychology, has identified some “click whir” responses that drive our perceptions, specifically reciprocity, consistency, social proof, liking, authority, and scarcity. Much of Cialdini’s work helps to explain why the collaborative negotiation model works in the first place, and provides some additional useful tools negotiators can use to make that model even more successful.

This article sets out three key strategies that I have developed by incorporating social psychology ideas into my collaborative negotiation toolkit.

Smart Preparation: Marshalling the Best Support
Thorough preparation is key to any successful negotiation. Be in command of the facts. The foundation of your power in a negotiation is knowing the details and themes of your case completely so that you can articulate your message persuasively.

In addition to your command of the facts, social psychology research suggests that you should marshal particular kinds of support for your position, if possible. Cialdini devotes an entire chapter of his book to “social proof,” or how human beings are wired to emulate the behavior of groups. In the context of your case, find other similar settlements and precedent before your first negotiation to show your offer is consistent with similar resolutions. This will resonate with your opposing counsel, and your offer will appear reasonable.

Gather authoritative sources that support your position. Cialdini’s work identified that human beings have a natural tendency to obey without question when authority factors are present. Marketing professionals are acutely aware that using highly regarded professionals, such as doctors and dentists, gives extra power to advisements. In the context of a negotiation, assembling authoritative sources and expert opinions as you prepare will make your message more compelling and persuasive. Doing so will also help you honestly assess the strengths and weaknesses of your case. Such information will be invaluable as you proceed to the more challenging task of crafting a negotiated agreement.

Thorough case preparation should also focus on the negotiation itself. Consider your adversary’s possible interests and obstacles. Where are their sources of power? Who are the players, and what third-party interests will be affected? Do any of your interests overlap? If possible, take the time to record your impressions on these questions, and refer back to your notes as the negotiation progresses.

You are setting the stage in the first meeting for a long chain of communications. Err on the side of more preparation than you think you need, and you will be rewarded in the end.

Building Rapport
Building rapport with your opposing counsel is another important negotiation technique supported by collaborative negotiation theory and social psychology. Establishing a connection with your adversary can make communications easier. Basic courtesy and professionalism are always a good practice. Cialdini identifies two other aspects of influence that can build rapport: “liking” and “reciprocity.”

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.

Presenting Your Case
The first communications between you and your opponent will also impact the trajectory of any negotiated solution. My preference is to have in-person meetings, with all of the stakeholders present, and to use visual displays of information.

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.

Collaborative negotiation theory, social science research, and my own experience have taught me that smart preparation, building rapport, and communicating visually and in person will enable you to work toward a mutually beneficial, interest-based resolution.

Keywords: litigation, woman advocate, negotiation, negotiation theory, social psychology, rapport, communication techniques

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