In Negotiation, Empathy is a Martial Art
In a negotiation, the most important personal attributes you can bring to the table are not the razor-sharp mind and tongue you developed in law school. Instead, empathy combined with self-control will get you the best result in a negotiation, with the added benefit of making you feel better about yourself and your job.
You Are Your Own Opponent
Most lawyers must negotiate at least occasionally, and many believe they know how to do it because they went to law school. Wrong! In fact, the adversarial process that American law embraces tends to make lawyers lousy negotiators. This is largely because our legal culture seems obsessed with seeing the lawyer as a warrior, lacking empathy for the other side. Negotiation is in no way analogous to war—it’s a search for a mutually beneficial result. Even when one decides to “lawyer up and fight,” the case almost always ends with a negotiated settlement.
My kids study Aikido, a martial art that is centered on self-defense techniques that do not injure the attacker. This approach is known as extending “ki,” which is spirit or energy. The kids wear a patch on their uniforms that includes a Japanese phrase that translates as, “true victory is victory over one’s self.” I’ve found it helpful to repeat this phrase silently to myself during contract negotiations, as it keeps me focused on coming across as conciliatory, empathetic, and forward-thinking, i.e, not sounding like a lawyer. Note that I am cooperative while simultaneously looking out for my client’s interests.
Extend Your Legal Ki
Often, I find myself listening to an attorney explain all the reasons why his client simply must have a contract term have a particular meaning—one that completely favors his client. This is the negotiation equivalent of an attack in Aikido. Instead of responding with all the reasons my client needs the term to mean exactly the opposite, I explain that I understand those reasons (and often paraphrase them back), and note that if I were the other party, I’d feel the same way. Then, and only then, do I dispassionately explain my client’s position, and say something like, “so I’m sure you can understand that, as I understand where you are coming from.” Often, the problem is quickly resolved. This is a bit like Aikido because I’m sidestepping the “attack” and using the attacker’s energy to put him into a position that’s favorable to both of us—feeling that it’s okay to compromise. Or, one might say, I’m just being empathetic and asking him to do the same. I’ve found this approach useful in resolving other types of problems as well.
No Campfire Songs Required
Make no mistake – you must know what your client must get, and what she can’t give up. And of course you must be willing to walk away without a deal if the other party won’t make absolutely necessary concessions. But if you can achieve victory over your sharp-minded, sharp-tongued self, you will almost always get the deal your client needs. And don’t worry, you won’t have to hold hands with the other lawyer and sing “Kumbaya.” But you might want to buy a T-shirt like the ones my kids wear, that reads, “I am a peaceful warrior.”