Thursday Thought--Stepping into another’s shoes: A Negotiation Strength

Posted By Anna Barth, Mar 17, 2016

Stepping into another’s shoes: A Negotiation Strength

 As law students and student negotiators, we are accustomed to practicing the objective points of negotiating such as justifying price points or limits. However, because our negotiation rounds typically use fictional facts and characters, we have little practice in understanding and using the emotions that play into real-life negotiations.

 Being a lawyer requires not only knowledge of the law but also an understanding of emotions and their influence over clients, other lawyers and difficult negotiations.  Professor Gerarda Brown in her article Deeply Contacting the Inner World of Another: Practicing Empathy in Values-Based Negotiation Role Plays, suggests that law students learn about emotional and mental health and the influences these have in negotiations.  More specifically, students should not only explore core legal competencies but also emotional competency.

 It is important to realize that there is a difference between expressing recognition of another’s emotions and expressing empathy. We law students can easily practice recognition of emotions based on our own experiences, but the latter is what helps us understand our clients, other lawyers, and witnesses.  There are two categories of empathy – cognitive and affective. Cognitive empathy is the process of understanding another person’s perspective. Affective empathy is when you, as an observer, develop an emotional response to the affective state of others.  Professor Brown suggests law students should be given opportunities to practice affective empathy.

 Law students should practice affective empathy for two reasons. First, a lawyer is more likely to form a stronger relationship with his/her client if the client feels that the lawyer not only understands the client’s positions and interests, but also resonates with the client’s feelings about the conflict. Second, high stakes negotiations where deep values and identities are implicated are more likely to be resolved if the individuals involved are not just understood, but also feel affirmed in some small way.

 A downside to teaching empathy in a classroom environment is the risk of playing a caricature of a person instead of role-playing a realistic client.  Educators can choose to create a script, or have a student improvise responses. Improvising may lead to students creating a caricature instead of a realistic client, but strict adherence to a script may lessen the reality of the role-playing because it limits the variety of responses a role-playing client may give. A hybrid of these two methods may lessen the cons of both: an educator may writ a script containing bullet points describing the characteristics of the client, the monetary limits,  the interests of each party and a basic overview of the narrative bringing the parties to the negotiations table. From there, the students would have certain parameters to work with but still left flexibility in how to react in the negotiations.

 Beyond strengthening a student’s ability to negotiate, practicing empathy – both cognitive and affective – would widen the student’s “moral community.” That is, increasing a student’s awareness of assumptions about others as well as common prejudices, stereotypes and hostilities that come into play with these implicit assumptions. Also, part of a student’s ability to recognize another person’s emotions is to recognize whether or not an Alpha-Beta dynamic is present and to adapt our negotiations skills by using the dynamic to our advantage. Meaning, to negotiate based on whether you recognize that one person is more affirmative, or confident, in the negotiations, and the other is taking a more passive, or less confident, and devise what emotional consequences there may be due to the dynamic.

 Practicing affective empathy, and empathy in general, as part of our negotiations curriculum would enhance our skills as future lawyers by opening communication channels with opposing sides, increasing creative problem-solving, and decreasing attribution of negative outcomes to other persons rather than circumstances beyond any person’s control. This discussion and practice of empathy should not limited  to law students but also to practicing attorneys. Practicing attorneys should talk about what empathy means to them and come to understanding how it may affect their normal negotiations.  By starting to introduce empathy , both cognitive and affective, attorneys can renew their negotiation practices.