By Joe Basta
A recent Wall Street Journal article brought home to me again the importance of listening for successful negotiating. Journalist Masada Siegel reported interviewing Glen Cohen, a retired hostage negotiator for the Israel Defense Forces. For a hostage negotiator, listening can mean life or death. Cohen says the biggest mistake to make is to jump to the last step in the negotiation: behavioral change. To achieve behavioral change, the negotiator must listen first. Unless the hostage taker vents his frustrations and speaks his mind, he will not have the capacity to hear what the negotiator has to say about behavioral change.
How often do we lawyers in a negotiation jump to “behavioral change” by interjecting our own thoughts before we truly hear out what our adversary has to say? Although few negotiations are “life and death,” being a good listener and knowing how to obtain information through the use of questions is critical to success. How do we talk less and listen more to obtain information? It is not easy.
I put the law students in my negotiation classes through an active listening exercise. They pair off and take turns being Speaker and Listener for five minutes each. The Speaker chooses a story or topic to speak about. The Listener must carefully listen to the story but may not respond to it verbally in any way. The Listener may use body language to indicate her involvement in the “conversation.” After five minutes, Speaker and Listener switch roles.
Student reactions to this exercise are always illuminating and consistent with research on active listening. Listeners report how difficult it is to focus and concentrate on what the Speaker is saying while simultaneously checking the Listener’s tendency to interrupt or interject. Speakers confirm that non-verbal responses from Listeners signal validation of what the Speaker is saying and encourage them to keep talking.
If you can learn what your adversary is thinking and feeling, you can establish rapport, satisfy their needs, and get what you want at minimum cost to you. People will usually tell you what you want to know if you encourage them to openly express themselves. (That is one reason why silence is often a good negotiating technique—many of us are uncomfortable with silence and feel compelled to fill it by speaking). But, in a negotiation, the more you talk, the less they speak, and the less chance you have to listen and learn. When you do speak in a negotiation, try to do so in a way that elicits more information from your opponent by asking questions.
Research and the experience of my students confirm that effective negotiators are better at eliciting information and ask more questions—sometimes twice as many— than less effective negotiators. They also test their understanding of what is said and summarize what they hear.
Clearly, active listening is the most effective listening. How to do it? The techniques are well-known to experienced mediators and negotiators. In addition to first focusing closely on what your opponent is saying, reflect back what she is saying in your own words and clarify any ambiguity or misunderstanding by asking them to explain. Like my students in their active listening exercise, use body language or brief interjections to encourage continued speaking. Provide positive reinforcement. Acknowledge agreement when you can. Recognize and validate feelings when you see them. And summarize your understanding of your opponent’s point of view to avoid any misunderstanding, to keep the conversation moving, and to articulate the matters on which you have reached agreement.
Asking the right questions is critical to active listening. Open-ended questions are best for information gathering: who, what, when, where, why, and how. Open-ended questions also keep your opponent talking. And the more they talk, the more you learn. Asking “why” is particularly suited to learning the interests that may be driving a negotiation. Reserve specific, focused questions for nailing down specifics. Other variations in questioning technique include repeating or reframing an opponent’s statement in question form, answering a question with a question, or simply asking your adversary what she would do if she were in your position.
However you choose to question, the goal is the same: talk less and learn more. Like the Israeli hostage negotiator, resist the temptation to jump to behavioral change—what you want from the negotiation—and listen first. Only then will you hear what you need to successfully conclude the negotiation.
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Joe Basta heads Basta Resolution, PLLC, an Ann Arbor-based firm specializing in mediation and arbitration of commercial and family disputes. He is a former chair of the Alternative Dispute Resolution Section of the State Bar of Michigan. Basta was a trial lawyer for over 34 years at Dykema, litigating complex commercial matters. He teaches negotiation at the Michigan State University of College of Law and is a member of Professional Resolution Experts of Michigan Inc. (https://premiadr.com).
