By Dr. Ken Broda Bahm –
Litigators like to see themselves as silver-tongued persuaders, but in an age in which fewer than one in fifty suits are resolved in trial, they may find that the negotiation skills of Donald Trump come to matter more than the rhetorical skills of F. Lee Bailey. And research is increasingly pointing to the fact that in a negotiations setting, many common intuitions about persuasion may not apply.
For example, a study reported in this month’s Journal of Personality and Social Psychology shows that negotiators who use arguments to support their first offer paradoxically fare worse than those who don’t. This post takes a look at why that is the case, and provides recommendations on the ways litigators should adopt their argumentative approach to negotiations.
In the research study, “Negotiation as a Form of Persuasion: Arguments in First Offers,” Yossi Maaravi, Yoav Gonzach, and Asya Pazy started with the truism that there is an advantage to making the first offer in negotiation (because the first offer serves as an anchor, or starting point for adjustments), and looked at whether it helps or hurts a party to accompany that offer with some good arguments. Intuitively, you might think that a few good reasons could only help make for a heavier anchor, inducing the other party to come up with a counteroffer closer to your own first offer. But according to the study results, that intuition is incorrect. In a series of four experiments, the researchers demonstrated that any negotiating party making a first offer achieves a better result if they avoid providing arguments for that first offer.
Now, why would that be the case? The reason is that providing arguments in support of your offer just causes the other party to generate counterarguments, and that process moves them farther away from your anchor than they would otherwise be. So, put simply, it is counter-productive to argue in support of your offer.
But does that mean that argument and persuasion play no role in negotiations? Based on my line of work, and our group’s name, that would be a pretty depressing conclusion. So, thankfully, that is not the implication. Instead, I see three good takeaways from this research.
1. Respect the “Speech Act” Difference Between Argument and Offer.
The idea of a “speech act” (Searle, 1969) reflects the notion that speech carries a component of action. For example, we know that some speech – naming a child, for example – is an action and not just an expression. But most of the rest of what we consider “speech” carries a dimension of action as well: promising, demanding, informing, questioning, etc., are all different forms of action.
As “speech acts,” offers are simply a different category than arguments. Supporting your offer with an argument re-frames the action, and puts your adversary back in an argument-producing mode, which is the opposite of the mode needed for settlement.
2. Bracket Your Negotiation in Phases.
There is an obvious role for persuasion and argument, but the “when” matters. Very simply, I’d suggest there are three phases to negotiations.
Phase One: Icebreaking. Instead of diving into the fray, spend some time draining the tension that grows naturally in an adversarial situation. All the effective litigators I know are able to compartmentalize the advocacy, and maintain cordial, and not just civil, relations with adversaries.
Phase Two: Positioning. This is the time to argue. Give reasons why your position is strong and their position is weak. Done well, these arguments serve the persuasive function of positioning you in the best way to take advantage of the bargaining phase.
Phase Three: Bargaining. This is the phase for offers and counteroffers, anchors and adjustments. The takeaway from the research is that a bargaining phase performs best when the focus is just on the process of making, considering, and responding to offers, and not on the very different process of arguing the merits of the offers and the merits of your position in the dispute.
3. If You Encounter Resistance at One Phase, Retreat and Rebuild in the Previous Phase.
If the positioning is going poorly, then go back to ice-breaking. If the bargaining isn’t getting you anywhere, then go back to positioning. Let’s say that your adversary hasn’t read this post and responds to your offer with a fusillade of reasons why you’re wrong and they’re right. If that happens, then the bargaining is over for the time being, and you are back to positioning. Make counter-arguments, but avoid making offers until you’re both argued out.
Negotions are extraordinarily complex, but one important point that can be missed by even experienced negotiators is this: there is a role for both your inner Donald Trump and your inner F. Lee Bailey, just not at the same time.
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Related Posts:
- Settle Your Case Without Setting the Dominoes in Motion: Research on the Demonstration Effect
- The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials
- Be More Realistic Than Your Opponent
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Maaravi Y, Ganzach Y, & Pazy A (2011). Negotiation as a form of persuasion: Arguments in first offers. Journal of personality and social psychology, 101 (2), 245-55 PMID: 21500924
Photo Credit: Annie Roi, Flickr Creative Commons