Litigation Strategy Settlement Negotiation

5 Ways to Mess Up Active Listening

Active listening techniques are often lauded as indispensable in legal negotiations, and for good reason: You’re more likely to reach agreement if you can both understand and demonstrate your understanding to the other side. But there are some common ways that negotiators fail in their efforts to use active listening.

  1. Having a come-back to each argument. As you’re listening to the other side and you hear something that you disagree with or think is false or incorrect, resist the temptation to jump in with a counter argument every time. Sometimes responding may be necessary, but the downside is that it can quickly turn into a shouting argument. Such arguing is detrimental and isn’t useful in a negotiation in which there’s no third-party neutral to render a decision. Instead of trying to score points or correct the record, stay quiet and try to understand the other side’s point of view.
  2. Following up on every question. You may find yourself asking many follow-up questions, either because you’re interested in learning more or to show your interest. Follow-up questions aren’t inherently bad, but you should listen first. And reflect back what you heard so the other side knows you’ve been listening.
  3. Jumping to conclusions. After hearing some of what the other side has to say, you may think you now understand their position and jump to conclusions. Be careful to keep an open mind as you’re listening and wait until the other side has finished before reaching any conclusions.
  4. Just nodding or saying you understand. Negotiators often nod their heads or say “I understand,” to assure the other side that the message was received. Simply saying that you understand doesn’t show that you really do. And saying “I understand” may come off as patronizing.
  5. Focusing only on the words said. Much is communicated nonverbally. If you are hyper-focused on the words being said, it’s possible to miss nonverbal cues and messages. As Dianne Schilling wrote in her article for Forbes, “[e]ven over the telephone, you can learn almost as much about a person from the tone and cadence of her voice than from anything she says.”

You’ll find more negotiation and case settlement skills and strategies in CEB’s California Civil Procedure Before Trial, chap 46. And for expert advice on settling business litigation cases, check out CEB’s program The Basics: Negotiation, ADR, and Settlement, available On Demand.

Other CEBblog™ posts on negotiation.

© The Regents of the University of California, 2019. 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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