California Bar Journal >The Peacemaking Lawyer as Effective Negotiator

Posted on August 6, 2013


From Professor Russell Korobkin,

A lawyer-negotiator who aspires to peacemaker status should attempt to resolve the dispute with at least a modicum of understanding and amity between the parties, even knowing that the ideal will not always be achieved, and that relationships scarred by litigation sometimes cannot be rehabilitated. Awareness of the following four psychological principles can aid in this endeavor, both when dealing with the counterpart and one’s own client.

The fundamental attribution error

In any legal dispute, at least one party and often both parties, believes he has been treated wrongly. That wrongful treatment can be attributed to the bad character of the other actor or situational constraints. Social psychologists have long known that a particular human failing is that we are too quick to make the former attribution when someone else’s act is at issue, although we tend to think our own harmful deeds were the fault of situational factors beyond our control. A consequence of this “fundamental attribution error” is that an unfortunate event is often experienced as a personal insult, even when it was not, which gives rise to anger and a desire for revenge, or score settling. Recognizing the possibility of alternative, less blameworthy explanations for the event or act in question will often not affect the viability of the legal claim, but it can set the stage for a settlement that minimizes personal animosity.

The self-serving bias

Another aspect of the human condition is that, within reason, our attention gravitates toward facts that support our view of the world as we would like it to be. In the face of litigation, one or both parties often think their legal position is stronger than it actually is, as assessed from a neutral perspective. Evidence suggests that lawyers, not just their clients, suffer from this bias. As a consequence, a counterpart’s aggressive bargaining position often appears intransigent, unrealistic, stubborn or greedy, when from her perspective it is fully justified by the merits of the case. Recognizing that both parties’ perception of the merits can honestly diverge in self-serving directions can help avoid the conclusion that the counterpart’s negotiation tactics are improper.
The importance of interactional justice
Lawyers too often assume that civil litigation is only about money. Although it is true that even the most sincere apology will usually not result in the dismissal of a valid legal claim, true peace almost always requires that the parties feel treated respectfully in the negotiation process; that they experience what psychologists call “interactional justice.” This usually means each party feels his position had been heard, his perspective understood, and his feelings validated, rather than believing the other party has acted in a dismissive, arrogant, and bullying way. Unilaterally bestowing interactional justice will not always improve the substantive terms of settlement, but it usually does ensure that a settlement, if achieved, will result in peace.

The fixed pie bias

Another psychological tendency that is factually invalid in many cases is for lawyers and clients to assume that no agreement term can benefit one party without costing the other party an equal amount. But creative lawyers can often identify concessions that help one party more than they cost the other, or tradeoffs that can make both better off. Not only does avoiding this “fixed pie bias” increase the total welfare created by a settlement, it frames the parties as semi-allies, working together to solve a problem for their mutual benefit, rather than facing off as enemies.

Read more at California Bar Journal.