This week I am reading Never Split the Difference by Chris Voss, a former FBI hostage negotiator. Voss writes about negotiating with bank robbers and war criminals, high stakes confrontations with lives hanging in the balance. Interestingly the techniques he employs to negotiate with these desperate people are exactly the techniques used by mediators tackling more pedestrian conflicts, like business break ups and divorces.
Voss recommends keeping an open mind and being curious about the people you are interacting with, trying to imagine their feelings and motivations, engaging them in discussion about their situation. We all share a common humanity and can connect, but we have to seek out the connection. Asking a trapped bank robber if he is hungry and scared of being shot begins a conversation that can be far more fruitful than simply demanding he come out with his arms up. Similarly, mediator can explore with our clients what their fears and dreams are, and try to work towards a solution once the barriers to agreement have been identified.
Voss also talks about the endowment effect, or loss aversion, something I first heard about in my first year of law school while taking a contracts course with famed negotiator Robert Mnookin. The endowment effect is the phenomenon that people tend to place a higher value on the things they have. So, for example, if I came across a 5 year old cedar bench at a yard sale I would not agree to buy it for $100, but, if someone came to my house and offered to buy my identically aged bench for $100, I would also not agree. The bench I have I want to keep, and place a high value on, maybe $300. The bench I don’t have I might buy for $50. This is not rational, but it is how most people think, and this has a big impact on negotiation.
As a mediator focusing on how an agreement will allow each party to retain things they care about is productive. Focusing on what people are going to be forced to give up is jarring and makes them panic. In conflict there is inevitably change and losses and gains. Getting to know your clients and what they care about allows for a productive conversation that focuses on preserving the things they value, whether that be family or professional relationships, retaining meaningful real estate like a family home or a myriad of other tangible and intangible things of value.