How Can Your Opposition Be So Wrong and What To Do About It
There are many reasons why negotiations fail. One that I and other mediators often struggle with is each side's claim that their opposition misunderstands the merits and thus the value of the case. Of course, the opposition is often reasonable, experienced counsel and they feel the same way. So the question is how can experienced counsel view the same facts and circumstances and come to such diverse opinions - and what can you do about it when you are negotiating?
Some common predispositions: Overconfidence in our own judgment and in the outcome of future events is a well documented phenomenon. (For example, in one study 87% of magistrate judges rated themselves in the top half of their peers in avoiding reversal on appeal. (For a thorough discussion of the impact of cognitive biases on judicial decisions see "Inside the Judicial Mind" by Guthrie, Rachlinski, and Wistrich, Cornel Law Review, May 2001)). This overconfidence in each side's valuation is a common impediment to resolving disputes through face to face negotiations - in part because it breeds distrust among counsel that impedes good communication and makes an agreement difficult to achieve. The phenomena is exacerbated by the related problem of confirmation bias whereby people give undue value to information that confirms their view of a situation and conversely give little or no value to information that is inconsistent with their views. Simply put, lawyers are drawn to the facts and law that support their case. And both sides may be exhibiting these tendencies. (For an interesting study on lawyers' limitations when they forecast litigation outcomes see "Insightful or Wishful" UC Irvine School of Law Legal Studies Paper Series No. 2010-16 by Goodman-Delahunty, Granhag, Hartwig and Loftus.)
Another problem in trying to get opposing counsel to reevaluate his position is called reactive devaluation. This phrase simply means that our reaction is often to devalue a statement (or offer) depending on its source; and there can be no more dubious source than an opposing counsel or his client. Therefore, counsel devalues what you say about the merits. (The presence of reactive devaluation is one reason that "reality testing" is often a critical role of a mediator who's questions or opinions are not devalued but actually valued because of his independence, expertise or the way in which he presents the issue.)
A frequent response to counsels' failure to listen to and consider your argument is simply to assume counsel does not have the facts or they misunderstand the law. You will "persuade" them that they are wrong. How often have you successfully convinced an opposing counsel that you are right and they are wrong? You might convince them that they have some risk they were not aware about, or you might convince them that you are confident of your view. But you will rarely convince them that you are right and they are wrong. One's next response is often to view our opposition's overconfidence as coming from either laziness in their analysis or a downright evil inclination. We feel that since counsel is a competent, experienced attorney, he should view the same circumstances that you do in generally the same light. If he does not, he is untrustworthy. And it is very hard to negotiate with an untrustworthy person.
How Can Your Opposition Be So Wrong and What To Do About It by Steve Altman
Copyright © 2013 Stephen Altman
Copyright © 2013 The Negotiator Magazine
The Negotiator Magazine November 2013