Estate litigation often involves high-stakes negotiations where emotions run high and the stakes are personal. “Never Split the Difference,” a book by Chris Voss, a former FBI hostage negotiator, offers invaluable insights into negotiation techniques that can be particularly effective in this context.
In this blog, I discuss some of the top lessons from the book and how we can apply them to our practice.
Tactical Empathy: Understanding Emotions
- Lesson: Tactical empathy involves understanding the emotions and perspectives of all parties involved.
- Application: In estate disputes, emotions can cloud judgment. By acknowledging the emotional undercurrents, lawyers can build rapport and trust. For example, a client may feel slighted by a sibling’s larger share of the estate. By acknowledging these feelings and expressing understanding, lawyers can build trust and facilitate more productive discussions.
Mirroring: Building Rapport
- Lesson: Mirroring is the technique of repeating the last few words of what someone has said to build connection.
- Application: When a client or opposing party expresses a concern, mirroring their words can demonstrate active listening and encourage them to elaborate. For instance, if a client says, “I’m concerned about the timeline,” you might respond, “You’re concerned about the timeline?” can prompt them to clarify their expectations.
Calibrated Questions: Guiding the Conversation
- Lesson: Calibrated questions are open-ended questions that guide the conversation without making the other party defensive.
- Application: Use questions like, “How do you see this playing out?” to encourage clients to think about solutions rather than dwelling on grievances. This approach can lead to more constructive negotiations.
The Accusation Audit: Preempting Criticisms
- Lesson: The accusation audit involves addressing potential criticisms before they are raised.
- Application: In a mediation session, acknowledge potential criticisms. For example, “You might feel our offer is too low, but we’re basing it on a fair market assessment.” This can disarm the other party or client and reduce resistance.
The Power of ‘No’: Creating Safety
- Lesson: Allowing the client to say “no” can make them feel safe and in control.
- Application: Instead of pushing for agreement, ask questions that allow for a “no” response, such as, “Is this proposal completely out of the question?” This can lead to more honest discussions and uncover underlying issues.
The 7-38-55 Rule: Understanding Communication
- Lesson: This rule highlights that communication is 7% words, 38% tone of voice, and 55% body language.
- Application: Pay attention to non-verbal cues during negotiations. A client’s tone or body language can reveal more than their words, helping you adjust your approach accordingly.
By incorporating these lessons from “Never Split the Difference,” estate litigation lawyers can enhance their negotiation skills, leading to more effective and amicable resolutions for their clients.
Thanks for reading!