Mediation, or Hostage Negotiation?
Two months ago, The Wall Street Journal published an interview with Christopher Voss - a former hostage negotiator for the FBI and current CEO of a company that trains people to negotiate - to get his take on how to handle difficult discussions. It actually turned out to be a fantastic primer on how parties and their attorneys can navigate difficult mediations as well. Here are some of the highlights of the interview.
1. Preparation. Mr. Voss notes that as we prepare for a difficult negotiation, we often find ourselves getting mad, presumably because “we are correct” and “the other side is wrong." But such negative thoughts and emotions limit our successes. Instead, Mr. Voss recommends that we adopt a positive attitude, and approach disputes with a calm demeanor and tone of voice that is not condescending and will engage the other party without firing them up. To accomplish this, Mr. Voss advises us to “rewire” our brains to view our disputes with gratitude and appreciation (rather than with anger) and treat the negotiation as a business opportunity rather than a personal vendetta. Preparing for difficult negotiations with the right frame of mind will help you think of all the things you want to say, and increase the likelihood of having an effective conversation.
2. Active Listening; Feeling Heard. Negotiations can be facilitated when the parties are able to bond with one another. Bonding is more likely to be accomplished when one party actively listens to the other party’s point of view and then summarizes it so the other party feels like they have been heard, and their position is understood, giving them confidence while peaking their interest in what you’re going to say next. In restating the other party’s position, use of the word “but” should be avoided as it implies denial and can shut down the conversation. According to Mr. Voss, if the other party says: “That’s right,” in response to your summary of their position, that is a good sign that you are starting to create a bond of togetherness that will facilitate your negotiation.
3. Address Negative Feelings Up Front. Starting the conversation in an effective manner is critical to getting off on the right foot with the other party. Discussions can be facilitated if the parties articulate their negative feelings about one another or about the situation they are both working through. Although this may seem counterintuitive, according to Mr. Voss, “Brain science shows that every time you identify a negative emotion, that negative feeling diminishes.” So by addressing negative feelings upfront, you will actually reduce them as a barrier between you and the other party. Tensions will thus be more greatly diffused, clearing the way for more substantive conversations.
4. Pitfalls. A common pitfall that can derail negotiations is the tendency of the parties to bolster their positions with “explanations.” As Mr. Voss says, explanation is a nice word for argument. Explaining your position is one sided, and can come off as condescending and ultimately argumentative. Obviously you’ll need to articulate your position, but in a less hostile environment - once you’ve accomplished the above protocols.
5. Moving Forward. Once you’ve had success in convincing a party that they’ve been heard, you can move the negotiation further along by asking them an important question: “How do we move forward?” This question will cause the other party to look at the situation more broadly, and generate a feeling of collaboration, rather than a feeling of being controlled by the other party. Further, putting this question to them accomplishes two important goals: first, the other party will be forced to look at the bigger picture, which may include negative consequences and concessions for them; and second, you get to preserve your line in the sand by transferring the problems back on the other party without looking combative. Meanwhile, you will reorganize the whole matter to create a more collaborative approach.
6. Stalemate Persists. After all your hard work, what happens if you still can’t come to an agreement? Mr. Voss remarks, “Remember that the last impression is the lasting impression.” Don’t try to get the last word in for the sake of it. It will come off as a cheap shot. Rather, make your last impression a positive one. This will likely leave the other person thinking about resolution, and may allow her or him to continue to think of and propose a solution. Either way, the chances of further collaboration will likely have increased.
As a mediator and retired judge, I’m constantly looking for new and innovative ways to effectively mediate cases. Christopher Voss’ hostage negotiation techniques markedly increase the prospects of successful negotiations and can be applied to mediations. Consequently, mediation participants should consider implementing some of Mr. Voss’ ideas. Doing so would encourage conversations to be conducted in a more friendly and collaborative tone, allowing the parties to work together more easily while attempting to resolve their dispute. For Mr. Voss’ complete interview, please look up The Wall Street Journal, June 15, 2020 edition.
~ Hon. Matthew Rosenbaum (ret.), is a retired NYS Supreme Court Justice and founder of Rosenbaum Mediations, PLLC. He has resolved thousands of cases, both small and highly complex. For more information, go to www.RosenbaumMediations.com.
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