Elevating Your ADR Game – Useful Insights and Perspectives | “Never Split the Difference: Negotiating as if Your Life Depended on It”

November 16, 2021

By James W. Borkowski, Esq. | New York Law Journal |November 2021

Welcome to the first in a series of articles/discussions that will be based upon books written by experts in the field of negotiation tactics. These works are by authors who have a unique perspective about mediation and arbitration. The essence of each publication and the focus of these writings will be my observations about how each author's experiences can enhance and sharpen your own negotiating skills when mediating or arbitrating a case. In this and future writings, I will address how these publications have helped me hone my mediation skills.

The Book: Never Split the Difference: Negotiating As If Your Life Depended On It
By Chris Voss, with Tal Raz. (HarperCollins Publishers, 2016)

Never Split the Difference: Negotiating As If Your Life Depended On It is the ideal book to begin this series. Principal author, Chris Voss, is the former Federal Bureau of Investigation chief hostage negotiator. After twenty-six years with the FBI, Voss is now in the private sector. As founder of The Black Swan Group, Voss provides negotiation training, and advises Fortune 500 companies in complex negotiations.

In practical, direct, language, Voss' book teaches “tools for talking anyone into (or out of) just about anything.” Never Split the Difference is a great read, with fascinating war stories about Voss negotiating with bank robbers and kidnappers. He even recounts how he negotiated a great deal with a car salesman.

Until the 1980s, the FBI's old-school approach to hostage negotiation was to keep talking until the FBI found an opportunity to shoot the hostage taker. This brute force approach proved ineffective, sometimes leading to tragic results.

Like the old FBI negotiation approach, we litigators are temperamentally predisposed, and trained, to employ single-minded, aggressive strategies and tactics. We are prepared to reject and rebut an adversary's arguments with facts and legal authority to impose our client's point of view. This disallowing approach provides for only one winner and a clear loser.

Voss transformed the FBI strategy by developing a brilliant approach, combining tactical empathy and personal connection, followed by careful, open-ended questioning. Voss' approach will allow you, as a negotiator, to “disarm, redirect, and dismantle your counterpart in virtually any negotiation. And to do so in a positive relationship-affirming way.”

Sharpening Your Skills By Using Tactical Empathy

The core of Voss' approach to negotiation is the use of what he terms tactical empathy. In brief, tactical empathy is a combination of true active listening, establishing connection, and framing the negotiation. As Voss writes, “Negotiation as you'll learn it here, is nothing more than communication with results.”

Tactical empathy is not about agreeing with the other side's point of view. It is about having the right mindset and understanding who you are dealing with. Instead of attempting to dominate the conversation, let the other side go first, and listen carefully. Negotiation is a process of discovery. Once your adversary has finished, rather than rebutting, first respectfully summarize what has been said. Summarizing conveys that you are listening and breaks down barriers. It is not a passive approach. It positions you to make a connection and shape the negotiating environment to your advantage. Voss even suggests the best voice to use in different negotiation situations, such as the “Late-Night FM DJ Voice.”

The Calibrated Question

Voss combines the use of tactical empathy, followed by a calibrated, or open-ended question. The calibrated question is a non-confrontational way of saying “No”, allowing you to frame the negotiation. For example, instead of telling a hostage-taker, “No, you can't leave,” the negotiation can be steered by asking the calibrated question, “What do you hope to achieve by leaving?” In addition to artfully saying “No,” this open-ended question prompts the adversary to volunteer useful information and goals.

In a mediation setting, rather than flatly rejecting a plaintiff's settlement demand by saying, “No, we won't pay that amount,” Voss' “greatest-of-all-time” response by the defendant would be a deferentially delivered calibrated question when put in the context of negotiating a case:

“I'm sorry, but with the defenses we have in this case, how am I supposed to do that?” followed by, “I'm sorry, but that number does not work for us.” Notice how these two questions soften the word “No” and avoid making a counteroffer. Genius.

Calibrated questions work equally well for plaintiffs. For example, “Your offer is certainly made in good faith, I'm sorry, but it just doesn't work.”

I had the opportunity to interview Chris Voss for this article. I asked him if there was one piece of advice, he could give litigators in a mediation. He replied, “The secret to gaining the upper hand in a negotiation is to give the other side the illusion of control.” Along with tactical empathy and calibrated questions, this approach allows you to use your adversary's aggressiveness to your advantage.

I recently saw an insurance Claims Representative use this approach, with great success. In mediation after mediation, Plaintiff's counsel insisted on naming the final settlement number. The Claims Representative recognized the pattern and began to hold back just a little from her target settlement figure in the final round of negotiations. Plaintiff's counsel invariably demanded a few more dollars as his walkaway number. The Claims Representative appeared to “cave in” agreeing to Plaintiff's demand. The Claims Representative let Plaintiff's counsel feel that he had won, all the while achieving her settlement goal.

Voss offers many other insights into negotiating, such as his belief that “No” is not a rejection or failure. Contrary to what many would think, Voss believes that “No” is actually the starting point in the negotiation, allowing sides to eliminate what they don't want and clarify what they do want. Voss devotes an entire chapter to “The two words that immediately transform any negotiation.”

Personal Takeaways: How Voss' Approach Helped Me Sharpen My Mediation Skills

If I were to encapsulate my approach as a Mediator at NAM, it is based on attentive listening and establishing trust. Trust is the essential element.

Using the Never Split the Difference approach, I would summarize each party's arguments, as well as submissions, when we first caucus in private breakout rooms. After acknowledging that I fully understand their facts and arguments, I explain, “It seems like you have some solid arguments, and there is also risk for your client.” Counsel then realizes that I appreciate their case, and that I am prepared to work toward a successful resolution for them.

The importance of establishing trust cannot be overstated. I recently mediated a catastrophic construction accident case, with high risk for both sides. Each side expressed confidence in their case and questioned why a mediation was scheduled in the first place. Plaintiff's counsel made a stratospheric settlement demand of $12 million. Defendants were dismissive, professing confidence that they would win a summary judgment motion, and get out of the case.

During the first breakout caucus with plaintiff's attorney, I encouraged their counsel to send a signal that he was prepared to settle the case, at a lower, but substantial, number. Plaintiff lowered his settlement demand from $12 million to $6.5 million. Even I was a little surprised at the significant movement. Plaintiff's counsel simply said, “Jim, I trust you to settle this case.” Dropping pretense communicated that plaintiff wished to negotiate in good faith and set a positive tone. It saved the mediation from early failure. Seven hours later, the case settled, with a good result for all concerned.

Voss' approach to negotiation and conflict resolution teaches that effective representation of your client can be achieved through collegial, carefully strategic negotiation. Negotiation is an art. As Voss writes, “One can be an exceptional negotiator, and a great person, by both listening and speaking clearly and empathetically; by treating counterparts – and oneself – with dignity and respect. Every negotiation, every conversation, every moment of life, is a series of small conflicts that, managed well, can rise to creative beauty.”

This is not a naïve mindset. It works against terrorists and kidnappers. It can work when mediating or arbitrating a case.

Never Split the Difference will transform your negotiation skills.

Reprinted with permission from the November 16, 2021 issue of The New York Law Journal © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.


About the Author

James Borkowski is a litigator with more than 30 years of trial experience. He serves as a Mediator and Arbitrator at NAM (National Mediation and Arbitration) and has consistently been voted a Top Ten neutral in the New York Law Journal Best Of Survey.

Meet James W. Borkowski, Esq.