Empathic Communication Crucial to Negotiation

Perhaps the most crucial foundational skill of productive negotiation and communication is the ability to empathize with the other person.  Empathic communication (also known as “Non-violent communication”) is the cornerstone of the collaborative divorce process and interest based mediation. 

But, in the world of adversarial, positional and leverage based legal negotiations, this is a foreign concept.  Even today, in the vast majority of legal negotiations, the goal is not to understand the other party, but to “win”.  Period.  This seems to be especially true in divorce, custody, alimony, equitable distribution and other family law related cases.

The legal profession as a whole is simply behind the times in negotiation skills and processes. 

The business world has understood the importance of understanding and empathy between parties to a negotiation for decades.

As early as 1989, Stephen R. Covey, in his bestselling book The Seven Habits of Highly Effective People named empathic interest based communication as one of the seven habits.  Covey calls the habit “Seek First to Understand, Then To Be Understood.”

This book has been widely read and applied to the business world for over 20 years. 

Here’s what Covey has to say about empathy: 

“When I say empathic listening, I mean listening with the intent to understand.  I mean seeking first to understand, to really understand.  It’s an entirely different paradigm.”

“Empathic listening gets inside another person’s frame of reference.  You look out through it, you see the world the way they see the world, you understand their paradigm, you understand how they feel.”

“Empathy is not sympathy.  The essence of empathic listening is not that you agree with someone; it’s that you fully, deeply, understand that person, emotionally as well as intellectually.”

“Empathic listening is so powerful because it give you accurate data to work with.” 

“Next to physical survival, the greatest need of a human being is…to be understood, to be affirmed, to be validated, to be appreciated.”

“When you listen with empathy to another person, you give that person psychological air.  And after that vital need is met, you can then focus on influencing or problem solving.”

From a negotiation standpoint, the bottom line points are:

1. That seeing the situation from the other party’s point of reference is crucial.
2. That you do not have to agree with the viewpoint, just understand it.
3. That empathic listening produces accurate data for the negotiation.
4. You cannot influence the other person or problem solve until you have sought to understand the other party. 

Whether you are involved in a business negotiation or a divorce negotiation, understanding the crucial role that empathic communication plays in the conversation will be the foundation to finding an intelligent, durable and mutually beneficial resolution.

Communicating in Divorce: Tone Matters

One of the biggest challenges that many clients face in their divorce is how to communicate with their spouse or ex-spouse.  This especially important when a couple will be co-parenting down the road.

When children are involved, productive communication is crucial to protecting the kids from the ravages of a divorce.

That is easier said than done.  So, the question becomes how to productively communicate?  There is a lot of information about how do to that.  But, in my experience, a lot of it is somewhat hard to really grasp and put into practice in the heat of the moment.

One suggestion that I use is to speak to your spouse or ex-spouse the same way you would speak to your child’s teacher at a parent-teacher conference. 

After all, there are some strong similarities in the conversations.  The goal of a parent teacher conference is frequently the same as communication between divorced or separated parents: discuss issues regarding the kids and possible ways to address those issues.  Further, you may disagree with something the teacher says, you may be offended, and you are certainly emotionally invested in the topic of the conversation, i.e. your child.

Think about how you would speak to your child’s teacher.  What tone would you use?  What things would you say and not say, even if you were thinking them?  What would be your goal?

I suspect you would adopt some combination of the following techniques in a conversation with your child’s teacher:

            Ÿ          Paying attention

            Ÿ          Politeness

            Ÿ          Asking questions to clarify information

            Ÿ          Making an effort to understand what the teacher is saying

            Ÿ          Acting respectfully

            Ÿ          Working together

            Ÿ          Acknowledging the joint interest in your child’s well being

By contrast, you probably would not do the following in a conversation with your child’s teacher:

            Ÿ          Blame the teacher

            Ÿ          Accuse the teacher

            Ÿ          Yell

            Ÿ          Insult the teacher

            Ÿ          Threaten the teacher

            Ÿ          Act rudely

Why?  Because you understand that the teacher has a lot of influence over your child and spends a lot of time with your child.  Because your relationship with that caretaker is very important to your child’s well being. Because you know that you’re going to have to see that teacher again.  Because you actually want to have a productive meeting.  Because you want what is best for your child. 

That being the case, why would you treat your child’s other parent differently?  After all, isn’t your child’s other parent going to be at least as influential and important for your child as the teacher? 

Yes, there may be emotional reasons for treating your ex-spouse differently than your child’s teacher.  But, are your emotional issues more important than your child’s well being?

In my experience, having a parent adopt a tone appropriate for a parent teacher conference sets the stage for a productive collaborative conference or mediation.  And it gives clients an easy reference point, a convenient “go to” mode when they feel themselves struggling to communicate well.   

In my experience, this technique frequently helps, and rarely, if ever hurts.

Harvard Praises Collaborative Divorce Efforts

The Program on Negotiation at Harvard Law School is perhaps the preeminent source for negotiation information in the United States, if not the world.  This program generated Getting to Yes, one of the most widely read manuals for negotiators. 

So, when this group of experts endorses Collaborative Divorce, we should all probably listen.  This kind of endorsement adds to the argument that older methods of dispute resolution in divorce cases are giving way to newer methods like Collaborative Divorce. 

If the top experts in the field of negotiation recommend the Collaborative Divorce process, it is probably worth considering for your own divorce. 

Want to Save Money on Legal Fees? Negotiate Early.

This is a very common scenario in family law cases: The parties enter litigation when someone files a lawsuit. The lawsuit begins an endless stream of legal pleadings, court appearances, document preparation, depositions and all of the other parts of litigation that drive up legal bills. The parties are too mad or stubborn to really try to work out a resolution for fear of appearing weak in the eyes of the other side. So, everybody builds up their arsenals in preparation for mutually assured destruction in the courtroom.

On the day of hearing or trial, the judge asks the attorneys where the parties stand on a settlement. The judge then recommends that the parties either try to work something out in the hall or in chambers with the judge.

Then the lawyers seriously discuss the hard issues in the case and try to work out an agreement. You would be amazed at how many settlements are reached on the day of a hearing or a trial.

Sometimes this is unavoidable. But, most often it can and should be avoided. If the parties had instructed their attorneys to really explore a resolution at the beginning of the case, then much of the huge legal expense of preparing for the courtroom would have been avoided.

Is it always possible resolve a case without going to court? No. Some cases and issues are so tough and so complex that a judge needs to make a decision for the parties. However, in the majority of cases, clients can save thousands, if not tens of thousands of dollars by instructing their attorney to really work at exploring settlement options at the beginning of the case, rather than on the day of trial.

After all, if you are going to settle the case on the day of your court appearance after months (or years) of litigation and tens of thousands of dollars of legal fees, why not cut to the chase and seriously explore settlement up front?

If you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

What's It Like to Go to Court? See For Yourself.

One of the biggest decisions that any family law client will have to make is whether they want to accept the negotiated resolution that is available or take their chances in court.

No one can make that decision for you. Your attorney should provide you with all of the information possible to help you make your decision. This includes talking about the strengths and weaknesses of your case, the judge's inclinations, and other factors that may influence the outcome.

However, no attorney can or should guarantee a particular outcome. So, there is always an element of risk in allowing your case to be resolved by a judge. One of the factors that has to be considered in your decision is whether you are willing to endure the process of a courtroom trial. A hearing or trial can be emotionally grueling. Further, the intimate details of your life will be on display for anybody that happens to wander into the courtroom. Many clients are surprised to find out that anybody can sit in the courtroom to listen to their case.

In order to get a true idea of what a domestic trial is like, I advise clients to take a day off and go to the family court in their county (In Wake County, family courts are located on the 9th floor of the courthouse). If you go, you should watch a hearing or a trial. That, in turn, will give you the best idea of what it will be like to go through a trial in your case. And, more importantly, it will give you a very good idea of whether you want to push your case to court, or resolve it through negotiation.

If you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.