Emotion in Negotiation
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Civil Negotiation and Mediation by Nancy Hudgins
February 2012 |
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If you think I’m talking about your clients’ emotions, you’d be half right. It’s not just our clients’ emotions we have to deal with; it’s ours as well.
Think back to your last several mediations. How many times were you personally frustrated and upset by a proposal from the other side? How many times have you angrily reacted when it becomes apparent that the other side has not evaluated the case as realistically as you have? How many times have you entertained the irritating (or anxious) thought that a case you really want to settle is not going to settle?
Emotion in negotiation is one of many negotiation challenges. It always comes up. It’s the elephant in the room that we, as lawyers, mostly ignore, because we’ve been taught and trained to think through a problem dispassionately and logically. We focus on issue spotting and problem solving. This means there’s less brain power to focus on measuring the gestalt of the situation and the emotional temperature of your client and yourself.
Our clients become emotional, too. How many times did you have to calm down your client because he or she was angry with a settlement figure proposed by the other side? How many times did they take the back-and-forth of negotiation personally? How many times have they felt devalued?
When emotional flooding occurs, it can take several minutes to subside. During that time, it is impossible to think logically. This has been neuroscientifically proven, and in the vernacular is called amygdala hijack. The amygdala, caught up in fight or flight, hijacks our higher cortical functioning. It can have lingering effects beyond the initial hijack.
Mediation preparation should include thinking about how your client and you will prepare for emotions. Prior to the mediation, think about likely emotional triggers. At the start of the mediation, remind your client and yourself that emotions will likely come up. During the mediation, pay attention to your emotional state.
You can lessen the impact of negative emotions by:
Noticing them. The mere fact of noticing them will lessen their impact.
Quietly naming them to yourself. Oh, I’m beginning to feel frustrated because the negotiation is not going the way I anticipated….
Quietly taking a few deep breaths. This will give the emotion time to dissipate.
Taking a break if you need it. Get up and walk around. Even around the block, if necessary.
Picturing the negotiation as if you were a fly on the wall. Look at the big picture from afar, instead of feeling as if you are in the thick of it.
All of these strategies will get you out of emotional reactivity and back into logical thinking, which is where you can thoughtfully find a way to resolve your case.
Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class actions. She has settled and mediated thousands of cases. In addition to civil litigation mediation, she also co-mediates divorces with John Duda, a marriage and family therapist.
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