If you think about it, emotion plays a large part in negotiation. It’s the elephant in the room that we, as lawyers, mostly ignore, because we’ve been taught and trained to think logically through a problem. The focused use of the brain for problem solving, ipso facto, means that there’s less engagement of the brain for measuring the gestalt of the situation and the emotional temperature of your client and yourself.If you think I’m off the mark here, think back to your last several mediations. How many times did you have to calm down your client because he or she was angry with a settlement proposal from the other side? How many times were you personally upset by a proposal from the other side? It’s not just our client’s emotions we have to deal with; it’s ours as well.
I know I’m talking about stuff we don’t like to think about. Our comfort zone is in logical analysis. I think we’re kidding ourselves, though, if we don’t anticipate emotion in negotiation and if we don’t have strategies to deal with it.
This is the first of several posts on emotion in negotiation I’m planning to write between now and the end of the year. I hope you’ll join the conversation.
Update. I see my friend Stephanie West Allen over at Brains on Purpose and I are channeling the same thoughts. Her latest post on emotion in negotiation is here.
Geek update. The photograph is my first attempt at “photoshopping.” My thanks to Lesa King at The Graphic Reporter for teaching me about the “magic extractor” at the PowerPoint Live 2008 convention. Check out her “how-to” post here.
2 comments:
Excellent post. Unless the dispute I am mediating is a pure contract or book account issue between larger companies (where the participants have little "personal skin" in the game), I almost always see emotion in mediations (certainly divorce, but commercial too). Often, commercial lawsuit claims are not really what the suit is about.
I will sometimes use transformative mediation methods to ensure that each person is heard and their emotions are recognized. Some people need to vent. Their attorneys have not validated how they feel (after all, they're supposed to be the zealous but dispassionate advocate). If it's a court-annexed mediation, litigants will look at me as the court (so they have their "day" in court). What becomes frustrating is when attorneys see no point in letting their clients vent. I have to take them aside to explain it to them.
On offers made in my mediations, I always do a number of things. I tell people in my opening statement that if they hear an offer they don't like, to not get upset and to make a counteroffer. When a party has me convey an offer to the other side, I ask them how they think the other side will react to the offer and what the dangers of making a lowball offer are. If a party reacts with disgust to an offer, I ask them what they would have done/offered if they were in the other party's shoes. These methods seem to keep that parties on track while recognizing emotions.
Hi, Marvin!
Thanks for stopping by.
I agree with you about emotion. I think that one of the services we can provide to attorneys is coaching them to acknowledge their clients' emotions and to let them vent, even in caucus.
I also appreciate your suggestions about helping the parties understand the messages that the underly the numbers.
Best,
Nancy
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