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ADR Tip: April 6

I recently came across an article about FBI Hostage Negotiator, Chris Voss.  The article discusses how Voss applies what he has learned in the business world to his negotiations with the FBI. There are several references to Voss’s book Never Split the Difference throughout the article, where Voss describes some of the strategies and tactics he uses while negotiating. Voss emphasizes that we are emotional beings and make emotional decisions and then try to rationalize those decisions. Throughout the book, there are compelling examples of how asking better questions, gathering more information and re-framing conversations can lead to greater outcomes.

In applying this to my own mediation practice, I had a plaintiff several weeks ago who told his lawyer that he would never settle his case for less than $500,000.00.  The plaintiff and his lawyer had met several times and couldn’t agree on a lower settlement number. The case involved a routine car accident and the facts of the case were simple. The subrogation amount seemed manageable and the plaintiff had made a good recovery. Ultimately, the case value was not near what the plaintiff thought he needed to reach resolution. So a mediation was scheduled.

During the first mediation caucus, I asked the plaintiff to explain why he thought his case was worth so much money.  I soon realized that the plaintiff had misconceptions about how the settlement money would be treated and that he didn't understand his outstanding medical bills. First, he was unaware that any money he received would be treated favorably for tax purposes. Second, he had unknowingly received a significant invoice from an out-of-state medical provider which, if owed, would greatly impact the amount of settlement.  After resolving these issues, the case settled.  This is just a simple example of the importance of re-framing the conversation to determine what is driving a person’s judgement.  
The most interesting take away for me from Voss’s book is that the better you listen, the more information you’ll receive and the better the negotiation will be. In the book, there are several basic mediation principles you’re likely to recognize (and are probably doing already) and these principles may give you additional ways to improve your communication skills. Overall, Never Split the Difference is a great read that is applicable to effective negotiation and is truly a noteworthy book about communication.

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Taylor AkersComment