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Getting Your Way
Editors’ Note: Why is it that attractive or well-liked people tend to do better in negotiation? Guthrie explains how persuasion in negotiation works differently from persuasion in court. The psychology behind six different factors that tend to influence people is described: liking, social proof, commitment and consistency, reciprocity, authority, and scarcity all have consequences. Guthrie offers practical tips, exploring how lawyers and other negotiators can use these phenomena to influence their counterparts in negotiation.
Negotiation is often viewed as an alternative to adjudication. In fact, however, negotiation and adjudication may be more alike than different, because each is a process of persuasion. Both inside the courtroom and at the bargaining table, the lawyer’s primary task is to persuade someone that her client’s positions, interests, and perspectives should be honored.
Despite this apparent similarity, persuasion operates differently in adjudication and negotiation because the lawyer seeks to influence a different party in each process. In adjudication, the lawyer seeks primarily to persuade the judge or jury hearing the case. The judge or jury is empowered to resolve the dispute unilaterally by applying rules of law to the relevant facts of the case. In negotiation, the lawyer seeks to persuade not a judge or jury but rather her counterpart at the bargaining table. One’s counterpart in negotiation is free to ignore the law and facts of the case while resolving the dispute through agreement.
The import of these differences is that the lawyer must sometimes use different persuasive tactics in each process. In court, the lawyer can often use various rhetorical and even dramatic devices to persuade the judge or jury to render a decision under the law that favors her client; in negotiation, the lawyer generally needs to deploy a more subtle set of devices to induce her counterpart to agree to enter into a favorable settlement.
Researchers have identified several persuasive devices or compliance tactics that a lawyer can use in negotiation. These compliance tactics operate like “heuristics” or mental shortcuts that individuals employ automatically to make judgments and decisions. (Tversky and Kahneman 1974) When deciding whether to comply with requests, people generally look for simple cues—like whether the requester is an authority figure—to help them decide whether to comply. Often, it is sensible for people to behave this way; other times, however, these cues can induce a “distinct kind of automatic, mindless compliance from people, that is, a willingness to say yes without thinking first.” (Cialdini 2009: xii)
Psychologist Robert Cialdini has organized these compliance tactics into six universal “principles” or “weapons of influence”: liking, social proof, commitment and consistency, reciprocity, authority, and scarcity. (Cialdini 2009) A lawyer who recognizes that her counterpart is likely to be influenced by these principles may be able to use them to help her client get her way at the bargaining table. Even if a lawyer would prefer not to employ these techniques, she should at least know about them. A lawyer who is unaware of them is “terribly vulnerable to anyone who does know how they work,” including a counterpart in negotiation. (Cialdini 2009: 10)
The first of these compliance tactics is liking. People prefer to comply with requests made by those they know and like. (Cialdini 2009) People tend to like those who are physically attractive; those with whom they share something in common; those with whom they are familiar; those who pay them compliments; and those with whom they make some positive association. (Cialdini 2009) Every lawyer shares something in common with her counterpart—at a bare minimum, both are members of the same profession. Thus, every lawyer can attempt to capitalize on this (and other) similarities at the beginning of the negotiation to try to develop rapport with her counterpart. Empirical evidence suggests that rapport-building can lead to better and faster agreements. In one study, Janice Nadler found that law students previously unknown to one another who spent a few minutes chatting on the telephone prior to engaging in an email negotiation obtained better outcomes than did those who did not have a pre-negotiation conversation. (Nadler 2004) Similarly, Jason Johnston and Joel Waldfogel found that lawyers who litigated against each other frequently were more likely than others to settle their cases and to do so more quickly. (Johnston and Waldfogel 2002) Even the simple act of “mirroring” a counterpart’s behavior—sitting back when....
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