Impacting Negotiations: From Round Tables to Soft Chairs

Posted on July 6, 2010 by Timothy R. Hughes

Viet Nam signing peace accordsLaw and negotiation go hand in hand and understanding the psychology surrounding negotiation is critical to successfully representing clients.  I have long been fascinated by the wrangling of the parties over the shape of the table in discussions to negotiate the end of the Viet Nam war.  As stated eloquently in Time Magazine:

For ten weeks of often absurd haggling, the parties in Paris—the U.S., South Viet Nam, North Viet Nam and the National Liberation Front—have argued about whether the table at which to discuss a settlement of the Viet Nam war should be square, oblong, rectangular, oval or any number of imaginative mutations. Last week, after studying nearly two dozen designs, the negotiators at last agreed on the shape of the table: it will be round. A few days later, they sat down as a group for the first time to get on with the deadly serious business of seeking a peace settlement.

One person's "absurd haggling" is another's  insistence to be treated at the negotiation table as the equal of a chastened superpower perhaps.
 
Against this backdrop, I ran across a Discover Magazine's blog post discussing how what we touch impacts our judgment and decisions.  The post analyzed studies by  Joshua Ackerman of MIT detailing how the human sense of touch impacted their analysis and reaction to specific situations.  Subjects holding purposefully heavy objects during test interviews considered their interviewees, and themselves, as more weighty and serious than those with light clipboards.  Individuals touching sandpaper were primed to view others more harshly than those touching smooth materials. 
 
The soft and hard contrast was perhaps the most  interesting and important for purposes of negotiations. 

Ackerman also looked at the influence of an object’s hardness. He asked 49 volunteers to touch either a hard block of word or a soft blanket, under the pretence of examining objects to be used in a magic act. Afterwards, when they read an interaction between a boss and an employee, those who felt the wood thought the employee was stricter and more rigid than those who touched the blanket (but no less positive). It doesn’t have to be the hands that do the touching either – when he repeated the same task with 86 volunteers who sat in either a hard, wooden chair or a soft, cushioned one, he found the same results. “We primed participants by the seat of their pants,” he writes.

The chair experiment also gave Ackerman the opportunity to test the effect of hardness on decision-making. He asked his recruits to place two offers on a $16,500 car, the second following a straight refusal of the first by the dealer. While the volunteers offered the same average amount at first, those who sat on the softer seats offered far more on their second go than on their first. That’s consistent with the idea that hardness has connotations of rigidity and stability. People who feel hard sensations are less likely to shift in their decisions. Harder chairs made for harder hearts.

The implications of this study are significant (and I am sure my negotiation and mediation friends, such as Victoria Pynchon and Ron White will be very interested in this study as well).  Beyond the initial reactions, be very wary when your opponent puts your client and you in the cushy chairs at mediation and insists on sitting on the metal bench seating!

Hat tip to Andrew Sullivan's always interesting blog, The Daily Dish for this info from the post How What We Touch Changes How We Feel.
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Understanding the Other Side: The Art of War

Posted on January 19, 2010 by Timothy R. Hughes

The Art of WarA post yesterday from our friend Chris Hill at Construction Law Musings really resonated with me on a critical skill that many lawyers seem to lack.  The post, "What Owners Look for in Green Building and Why Contractors Should Care" advocated that contractors should know and understand what project owners were looking for in green buildings.  As Chris states well, "Knowing the other side's playbook is one way that a football team can prepare, the same holds true in pre-construction negotiation of contracts."

This same concept can and should be applied in every legal context.  If I cannot understand the strengths and weaknesses of not only my case, but also my opponent's, I am wearing blinders and courting disaster.  Not being able to play both sides of the chessboard is asking for surprises.  In negotiations, that means losing ground unnecessarily.  In litigation, it can mean flat out losing the case.

For years, a pocket classics translation of Sun-Tzu's absolute must read, The Art of War has lived on my desk.  A classic passage from centuries ago echoes this issue:

So it is said that if you know others and know yourself, you will not be imperiled in a hundred battles; if you do not know others but know yourself, you win one and lose won; if you do not know others and do not know yourself, you will be imperiled in every single battle.

For clients on the receiving end, you should understand and cherish the need for your lawyer to play the "devil's advocate" role in testing assumptions, articulating weaknesses, and educating you regarding the strengths and weaknesses of your position.  Ultimately, that very approach may mean success or failure of your matter.

Image by vlasta2

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