Litigation Strategy

Listen and You Shall Learn

When negotiating you will be more likely to persuade your counterpart if you actually understand what the other side wants, and if you let them know that you understand. One way to do this is by practicing active listening:

1 – Make up your mind when you go into the negotiation to listen to and understand what the other party wants;

2 – Pay close attention to the speaker, particularly

  • tune in to subtle or mixed messages,
  • identify tacit assumptions or expectations;
  • analyze the communications, particularly if they are confusing or unorganized, so that you identify the real priorities and importance of what the other side wants; and

3 – Repeat to the person speaking what you have understood, checking that your understanding is correct.

The FBI urges the use of active listening skills in crisis negotiations, because they let

negotiators control the tone of negotiations while they build the empathy necessary to win subjects’ confidence and to resolve tense situations.

Of course, with every technique there are pitfalls to avoid. The most common ones for active listening include:

  • The urge to respond with a counterargument. Remember this is a negotiation and your first goal is to understand. Sometimes you just have to let things go!
  • Asking follow-up questions without first really listening to the answer.
  • Saying you understand but not showing that you really do by reflecting back what you heard.

For more negotiation and case settlement skills and strategies, see California Civil Procedure Before Trial, chap 46. Also check out CEB’s program Selected Ethics Issues in Mediation and Settlement Negotiations.

Related CEB blog posts:

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© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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