What we’ve got here is a failure to communicate.”
This line is said to Paul Newman’s titular character in the 1967 film “Cool Hand Luke.” It’s often used in popular culture today to refer to when two sides have reached an impasse in their discussions. In the world of negotiation and claims management, this “failure to communicate” is often the root cause of why claims drag on or when attempts at early resolution prove futile. Ultimately, the issue that halts settlement negotiations in an active claim is rarely a lack of effort or desire, even if this seems to be the case. Instead, it is simply an issue of communication failure.
Enneagrams. Languages of Love. Myers-Briggs Personality Types. Zodiac Signs. Type A versus Type B. Introverts versus extroverts. Backstreet Boys versus NSYNC. Humans have spent centuries trying to understand and define the different types of personalities that make up our world. Often, when negotiation talks stall—or even if they end up turning more obstructive than productive—the issue is that there are two different types of people on either side of the negotiation.
For example, imagine an aggressive, Type A personality negotiating with a more thoughtful, analytic, Type B, and they reach a moment of silence. The Type B negotiator probably appreciates this brief respite. It’s a time for the negotiator to think, analyze, and weigh the different options. The Type A person, on the other hand, probably views this silence as an invitation to continue speaking. This ends up with the Type A person running the conversation and not leaving the Type B negotiator the necessary time they need to think. Even if both sides have equal interest and willingness to reach a deal, there will be no deal to be had if each side continues to negotiate in their usual manner.
Former FBI hostage negotiator Christopher Voss, who co-wrote the book “Never Split the Difference,” with Tahl Raz, emphasized the key, two-word phrase that any negotiator, regardless of their style of negotiating, should strive for if a negotiation hits a wall: “That’s right.”
“That’s right” is different than “You’re right.” “You’re right” is a concession. It’s a sign of defeat. It’s an acknowledgment of error. It’s the homerun every negotiator hopes the other side will eventually cave and admit, but is unlikely to ever be said out loud, even if it’s privately thought.
“That’s right” is a phrase that communicates empathy and understanding. It means you have properly summarized the stance or key issue of the other side and earned their agreement. It validates the other side and confirms that you have listened and understand what they have said. It means, if nothing else, the two sides agree on at least this one thing.
You can have the other side say, “that’s right,” without believing in the underlying premise itself.
For instance, saying something such as “It seems like you’re putting a lot of value in the emotional distress claim here,” could be met with a “that’s right,” but it doesn’t mean the speaker similarly puts value in the emotional distress claim. It just means that the speaker and the listener now agree that the listener puts value in the claim. But now that the two sides understand that the hang up in this settlement negotiation is the emotional distress claim, both sides can focus their discussions on just that issue.
Think about the process involved in reaching a “that’s right,” versus a “you’re right.” If a negotiator is striving for a “you’re right,” right out of the gate, it is just a beratement of facts and data, typically slanted in a way that aggravates or offends the other side. If instead a negotiator is striving for a “that’s right,” it essentially becomes a process of elimination and narrowing of the issues to find the one or two essential points that will make or break any deal.
There might be other, better introductory phrases, but “It seems like…,” is a personal favorite because it implies a level of active listening. “It seems like you’re putting a lot of value in the emotional distress claim.” “It seems like you don’t put much stock in a comparative fault defense.” “It seems like the spoliation issue isn’t a concern for you.” “It seems like getting this settlement done quickly is important to you.” Or even, “It seems like you made an outrageous opening offer, not because you believe that to be the honest value, but because you just wanted to get conversations going.”
Keep poking and prodding until you hit a “that’s right,” then narrow in.
The biggest, and most important hurdle for negotiating any claim is communication. The so-called Golden Rule of treating others how you would want to be treated should be thrown out the window in negotiations. Instead of negotiating with someone how you would want to be negotiated with, try to negotiate with someone how they want to be negotiated with. That first requires homing in on the key issue that will make or break any deal, and then using targeted analysis to persuade the other side to your position. Different methods of targeted analysis will be discussed in a later article, but before you can ever have a plaintiff’s attorney or claimant think or say, “You’re right,” and reach a deal you’re happy with, you have to first be able to find the common ground of “That’s right.”