Persuasive Lawyering: Role Reversal and Apology Solicitation in Client Counseling and Negotiation

Posted By Marcus Tang, Dec 10, 2013

You’re meeting with a new client who is livid about the traffic accident that brought her to your office.  She is angrily explaining to you everything the other driver did wrong, and has reiterated several times that there is absolutely no way she is at fault in any way.  As much as you would love for this to be true, your experience tells you that legal disputes are rarely as straightforward and favorable as your client seems to perceive hers to be.  At this early stage in the case, you just want to learn more about what happened.  Unfortunately, you are concerned that your client may have unintentionally omitted important details that may be unfavorable to her case.  You are also concerned that her strong feelings of blamelessness may cause her to refuse any reasonable settlement offer.  Or, perhaps the other driver feels the exact same way she does – further dimming the prospects for a successful negotiated agreement.  What do you do?

James Stark and Douglas Frenkel, in their recent article, Changing Minds: The Work of Mediators and Empirical Studies of Persuasion, explain several techniques that can help attorneys approach this common challenge.  They explore the various persuasion techniques that mediators employ when attempting to influence disputants, as well as the social science research theories underlying these techniques.  Although their article primarily explains the practical application of these theories of persuasion in the context of mediation, many of the theories also apply to client counseling or negotiation.  In other words, the persuasion techniques that mediators use to influence disputants may be just as useful to attorneys when they work with clients or negotiate with opposing counsel.

Role Reversal: “Why don’t you try putting yourself in your opponent’s shoes!”

The first technique that Stark and Frenkel discuss is role reversal, a form of counter-attitudinal advocacy.  For mediators, this approach involves inviting each party to better understand the other party’s perspectives and arguments by asking them to put aside their own perspectives, sincerely try to see the dispute as the other party sees it, and articulate that other perspective.  Research shows that role reversal helps to facilitate shared empathy between the disputants, which serves the ultimate goal of making it easier for them to agree on a settlement proposal.  Studies also show that role reversal can result in self-persuasion among the parties; by forcing themselves to understand the other party’s perspective, they are more amenable to the other party’s positions.  This finding is very consistent with other persuasion literature that suggests that people experience persuasion when they feel the need to stay consistent with earlier positions to which they have committed themselves.

Role reversal can be very useful in the context of client counseling as well.  Attorneys can use it as a tool to help their clients become – to the extent that it is possible – more objective about their emotionally upsetting situations.  By carefully asking a client to genuinely articulate how her opponent may have perceived the same facts in the dispute, or explain how her opponent may currently feel about the situation, an attorney can foster the client’s empathy for her opponent.  This could lead the client to adopt more reasonable demands, thereby reducing the risk of impasse in negotiation.  It may also assist the attorney during the fact gathering process; studies show that an effective way of correcting a client’s faulty memory is to ask the client to remember the events using a different witness’s perspective.  Asking a client to remember the events by adopting her opponent’s visual and attitudinal perspectives helps achieve the dual client counseling goals of reliable memory retrieval and self-persuasion.

It is important to note that the research shows that role reversal is not as effective when the party engaging in role reversal has a relatively high interest or ego involvement to the topic. In other words, the more strongly one feels about an issue, the less likely she will be persuaded on that issue through role reversal.  The implication for client counseling is that an attorney should not expect to be very successful with role reversal if the legal matter at issue is extraordinarily important to her client.

In the negotiation context, role reversal can be a powerful tool for persuading opposing counsel.  Just as mediators invite disputants to engage in role reversal, attorneys can invite opposing counsel to try to understand their clients’ perspective.  A party that sincerely attempts this may feel greater empathy, which could possibly result in self-persuasion.  Studies show that when parties have their attitudes changed through role reversal, these attitudes last longer – which means the parties “own” their agreements and are therefore more likely to comply with them.

Apology Solicitation: “Is there anything you’d like to say to your opponent?”

Another creative technique that Stark and Frenkel discuss is persuasion through orchestrating and soliciting apologies.  Studies show that when mediators are able to convince disputants to apologize to each other, those receiving apologies feel less aggression and animus toward their apologizers.  Different kinds of apologies have varying levels of effectiveness – not surprisingly, elaborate apologies are much more effective than partial ones.  Research shows that when mediators are able to elicit apologies from the disputants, they are more likely to settle.  Disputants who receive apologies lower their settlement targets and reservation prices while viewing their opponents’ offers as more fair, affirming other research showing that reciprocity can be a very effective persuasion device.

This technique of eliciting apologies can be very useful when working with clients during negotiation.  An attorney who understands, through competent client counseling approaches, that her client feels entitled to an apology from the opposing party can communicate this fact to opposing counsel during settlement discussions.  Although it may not seem very productive for an attorney to do this, a perceptive opposing counsel may see such information as an opportunity to improve the relationship between the parties (by encouraging her own client to offer a reasonable apology).  By understanding the importance of non-legal concerns, such as apologies and emotional feeling states, to their clients, attorneys can create opportunities to foster greater empathy among the parties.

Ethical Considerations

The techniques of role reversal and apology solicitation can be very effective persuasion tools not only for mediators in mediation but also for attorneys in client counseling and negotiation.  However, whenever attorneys employ persuasion techniques, they should stay mindful of their ethical obligations to their clients, opposing counsel, and opposing parties. These techniques are effective, and it is because of their effectiveness that they have the potential to be used unethically.  Attorneys should understand this and use them carefully and appropriately.

For further reading regarding the persuasive techniques that mediators use, see James H. Stark & Douglas N. Frenkel, Changing Minds: The Work of Mediators and Empirical Studies of Persuasion, 28 Ohio St. J. on Disp. Resol. 263 (2013)