Erin Archerd
Detroit Mercy Law School
As attorneys, negotiators, and mediators, leading conversations is what we do. We think we know a lot, based on our training and experience, about how people talk with one another. But, have we ever looked empirically at how conversations work?
Dr. Elizabeth Stokoe introduced a group of attorneys and ADR practitioners to the science of conversation analysis in a recent presentation at the Cooley Law School Auburn Hills campus.
Her presentation challenged pre-conceived notions of what helps – and what hurts – in negotiation and mediation.
Her core message was that talk is more systematic than we think and that it is important to “actually study the thing.” In her work, that has meant years spent poring over and coding real conversations to measure human behavior, rather than setting up artificial simulations. In the real world, the scripts and techniques for building rapport that we have been taught – like using the name of the person we are speaking with – do not usually work. What does work is making space for the person we are talking with to continue the conversation.
After warming up the group by listening and unpacking low-stakes phone calls, like making a veterinarian appointment for a pet, she moved on to more emotionally fraught conversations: crisis negotiators on calls with individuals threatening to commit suicide. All the conversations she played had been digitally altered to change the sound of the speakers’ voices and omit identifying characteristics, but they were still often difficult to listen to, even with those changes.
She also walked the audience through a collection of calls in which mediators try to convince potential parties to use a mediation service. Through those recordings, she discovered that parties care the most about having the process clearly spelled out, particularly how the mediator was going to reach out to the other party.
An ethos-based explanation, e.g. “We don’t take sides,” is less appealing to a party than a processed-based explanation, “What we do is we send your neighbor a letter.” Saying the mediator will speak with both sides is a practical way to demonstrate impartiality.
People want to seem nice and reasonable when speaking with a mediator, so at the end of a conversation about whether to use mediation, it worked most effectively to frame the request to mediate in terms of willingness to participate. Requests like “Is that something you’d be interested in?,” “Would you like?,” and “Does that sound like it might be helpful?,” garnered negative responses, often along the lines of “Well, I might be interested, but the other party is so unreasonable I’m sure they wouldn’t be.” When the request to participate was “Would you be willing to mediate?,” people agreed more often because it opened up a conversational slot for them to seem nice.
Many of her tips are as useful in everyday conversations as they are in the specific context of legal negotiations. A few highlights:
• Use “some” to continue, and use “any” or “so” to move on. Framing requests using the word “some,” (e.g., “Do you have some questions?”) is much more likely to encourage a person to continue the conversation. Using “so” signals you are moving on, and the word “any” (e.g., “Do you have any questions?”) usually prompts a negative response. Mediators and negotiators might focus on asking parties, “Is there something you can do?” rather than “Is there anything you can do?”
• Verbs matter. Watch out for verbs that express urgency (“need”) or entitlement (“want”).
• “Talk” is cheap. People shut down when asked to talk, and respond much better when told, “I want to speak with you.” People in crisis responded more to offers to “sort things out” rather than offers to talk about things.
• Close-ended questions work. Mediator training often focuses on avoiding close-ended questions, but they can be useful for leading a conversation and people know when it is not appropriate to respond with a yes or no.
• People want to be nice. As the mediation example above shows, when a request is framed in terms of willingness, “Would you be willing to do this?,” a positive response is much more likely.
Forced or practiced rapport may annoy people. Instead, focus on giving people opportunities to keep talking. We need to draw people into the conversation and keep them on track.
It is time to reevaluate the scripts we use as attorneys and neutrals. What we think is productive may not be leading the kinds of responses we intend from parties. Listening to other people creates slots for discussion, collaboration, and affiliation. If we can just keep the conversation going, we can worry less about forcing rapport building.
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Erin R. Archerd is an associate professor of Law at the University of Detroit Mercy. While in law school, she served as advanced training director for the Harvard Mediation Program. After law school, she joined the San Francisco office of Covington & Burling LLP, and focused on corporate transactions, and subsequently supervised the Mediation Clinic at The Ohio State University Moritz College of Law.
