Perhaps it’s helpful to start with what negotiation science can’t do for you. Negotiation science can’t mesmerise, trick or fool your counterpart into accepting an offer that doesn’t satisfy their needs. It can’t make a strong case weak, or a weak case strong. And it will never take the place of properly building your case through the careful investment of time and resources. Negotiation science also won’t allow you to read your counterpart’s mind or predict their moves with precision.
Negotiation science can do two things for you. It can enhance the likelihood that any particular proposal will be accepted or at least received in a positive fashion, and it can help you identify the real needs of your counterpart, so you can satisfy their needs in a way that makes sense for both sides of the table. No doubt about it—consistent use of negotiation science will produce better results.
Negotiation science is not a game changer in the same way as an independent witness who supports your client’s version of events; rather than being a building block, it’s an enhancer. That’s why we call our newsletter the Negotiator’s Edge. Will these techniques consistently enhance the chance of any particular proposal being accepted by ten percent? Probably not. But it might just enhance it by two or three percent, and that’s the edge you want. Because case after case, year after year, that edge can make all the difference.
Let’s explore two powerful ways you can enhance your offers.
The likelihood of a request being accepted is greatly enhanced when a justification is offered for that request. This can be referred to as the “because factor”. The power of the “because factor” is based on two scientific realities. We’re all literally hardwired to work together and co-operate (although sometimes it may not seem like it) and our evolutionary success is based on the power of the rational mind, which seeks out reasons to co-operate. When an offer is accompanied by a justification or a “because,” it has a significantly greater chance of being accepted.
Researchers at Harvard University explored this behaviour in depth. During one study, they arranged for a librarian to shut down all of the photocopiers in the university library except for one, creating long lines of students who wanted to use that machine. They then deployed researchers who asked students to allow them to cut into the line, using two different approaches.
The first group asked “Excuse me, I have five pages. May I use the photocopier?”
The second group asked “Excuse me, I have five pages. May I use the photocopier because I have to make some copies?”
Students allowed researchers who used the second request to move ahead 50% more often than those who used the first request. This is astounding, because the second request adds no substantive information to the first request, and is a frivolous justification. What other reason would the researcher have for wanting to enter the line other than to make copies?
So why the better response rate? The answer lies in the power of the word “because”. Humans are essentially programmed to build mutually beneficial relationships based on reciprocal efforts to fulfill needs. Humans are also territorial and naturally resist others imposing their will on them. The researcher who simply asks to cut into the line will be resisted more often than not. The researcher who offers a justification for cutting the line stands a far better chance of success because the student believes they are doing something to willingly help someone with their need.
The same phenomenon can be seen when vendors and purchasers haggle over price. Effective hagglers offer justification for their positions, “Your competitor has the same product at 50% less.” or “This is smaller than I had hoped for.” or “If I take your offer, my children will starve!” because consciously or unconsciously they know that offering a justification increases the chances of an offer’s success.
Similar studies have shown that the word “because” is particularly powerful in creating this reaction. Our minds look for shortcuts to arrive at conclusions, and the word “because” is a signal that the other party feels there is a rational need for their request. To the English speaker, the word “because” sends a direct signal to the brain that enhances the chance of compliance, even when it offers no additional information.
Beyond enhancing the chance of acceptance, there’s a secondary benefit to using “because” in your offers. Even if the offer is not successful, the use of the word “because” reduces the chance that the other side will find your offer offensive, illegitimate or overly antagonistic. Even if you are aggressively anchoring and don’t expect your offer to be accepted, using the word “because” will reduce potential fallout and increase the possibility that later offers will be accepted. Offering justifications and using the word “because” will definitely enhance your negotiations. How does this information impact lawyers in the context of a mediation where a party almost never gets to deliver the offer themselves? Is the tool still as powerful? The answer is a resounding “yes.”
The thoughtful mediator will deliver the “because” for you, enhancing the chances of settlement in any particular exchange, which is exactly why you have them there. This technique should not be a license to abdicate your responsibility and let the mediator do the justification work for you. A mediation is your process, and the case is your case. The parties must maintain as much control of the process as possible to meet their needs and reach an agreement. The justifications that the mediator delivers need to be your justifications to maximize your opportunity for success. Using justifications will enhance the mediator’s view of your theory and allow them to be a better surrogate for your position. You should use “because” with the mediator as often as you would with your direct counterpart if the mediator wasn’t there.
The power of the “because” can be further leveraged with an understanding of the science of “social proof.” Humans are herd animals. A decision will be more appealing to individuals if they believe other people are doing the same thing. Peer pressure and fashion trends are obvious examples of this trait, but it also has well-documented power in commercial transactions.
A classic example is a simple change of wording in late-night infomercials. After pitching the product, the “call to action” would be delivered in this format: “Operators are standing by, please call now.” For years, this was the standard approach and results were satisfactory, if unspectacular. A minor variation in this “call to action” resulted in skyrocketing response rates.
The new phrase was “If operators are busy, please call again.” The change was revolutionary for the industry. The first phrase implied that few people were calling, while the second suggested that many people were purchasing the product. Without changing any of the information given to the consumer about the product, the marketers achieved substantially better results by implying that many other people were placing an order.
Another experiment illustrated the same effect in a non-commercial context. A lone researcher stood on a busy city street gazing upwards, as if he was looking at something in the sky. Passers-by rarely glanced up to determine what the researcher was looking at. However, when three or four more researchers joined the first looking at the skies, almost every passerby looked upwards. They weren’t interested in joining the lone stand-out, but they were eager to join the herd.
How does this help counsel in the litigation context? If you align your offer with the position of the herd, you increase the chance of it being accepted. This process can begin quite early. When the parties are told “96% of civil cases settle without a trial,” they are already being primed to resolve their case rather than fight to the bitter end.
A more direct example is the use of case law. Lawyers may submit a case or two to support a position. Unless the issue is a legal one and the decision is from a binding appellate court, it will do little to persuade. It’ll be like that lone researcher gazing up at the skies—lonely and irrelevant to the decision-making process. But if you have five, ten or more cases that suggest a certain quantum or liability split, you amplify your chances for success. The larger the herd, the better. It could even go so far as “we have analysed the last ten years of reported X cases and…” That is a powerful persuader.
Social proof can be created informally without structured back-up. Comments such as “in our office, we have handled many of these cases and have never resolved one for more/less than X” could sway your counterpart to move towards your proposal. The key technique is to align your offer with the position of a herd.
- Enhance your offers with one or preferably multiple justifications
- Use the word “because” as part of your offer
- Arm your mediator with your justifications if you are not making the offer directly
- Align your offers with the perceived position of the herd