09 July 2021

Many disputes are resolved by negotiation, and indeed the vast majority of claims are resolved before they get to a trial - often before Court proceedings are even begun. Settlement frequently takes place at roundtable meetings where the parties and their lawyers negotiate face-to-face (or by zoom). Mediation, which is a form of negotiation where the negotiations are conducted through a middleman who shuttles between the parties (perhaps by zoom), is also increasingly common.

How the negotiations proceed and how they conclude are often dependent on the facts, the evidence and the law. They are also affected by the emotions of the parties and their lawyers. It is worth looking at some of the emotional components which may affect the discussions and at the little emotional storms which may break as the negotiations proceed.

Here is a selection of the emotional factors which may come into play:

  • People are more likely to negotiate positively if they like each other. Of course, the parties themselves may know each other well and may have decided a long time ago that they could not stand each other. For the other people involved in the negotiations, small steps towards liking each other, such as exchanging personal information, can help.
  • It will be hard for a party to make an offer if they do not believe that the other side are acting in good faith.
  • If there are deep-seated emotional barriers to a settlement, it is better to get them out, to air them and to explore them early, rather than to bury them, to put off the evil time when they need to be addressed or even to pretend that they do not exist.
  • Parties often feel compelled to respond in kind. If, therefore, one side are aggressive, the temptation will be to be aggressive back. If, on the other hand, the other party is friendly, then again the response is likely to be a friendly one.
  • In any negotiations, there is likely to be a credible zone for offers, even if the parties are a long way apart. Outside that credible zone will be an insult zone: the parties could make an offer in that area but it would be an insult. An offer in the insult zone will often prompt a counteroffer which is also in the insult zone. If, though, a party makes an offer in the credible zone, it is difficult for the other side to respond with an offer in the insult zone. The party making the first offer in the credible zone may therefore succeed in taking control of the negotiations.
  • Most people will be more worried about losing something of a given value than about gaining something of the same value. That seems odd but it seems to be the case.
  • A perception of scarcity can be a powerful motivator. People often regard something as more valuable if they perceive it to be scarce. It may therefore be helpful to offer, for example, a lease of a particular building (which is unique) rather than money (which is all around us).
  • If one party sees something as a threat, the ancient part of their brain may experience fear and be hijacked by the emotion which that threat creates. As a result, it may be impossible for that person to think rationally until that part of their brain has calmed down.
  • People like to be consistent. They have a desire to act consistently with what they have previously done or said. This makes it unlikely that they will change position during negotiations even if you present them with a compelling argument.
  • This is all the more the case if a party takes a stand on a certain issue. They are likely after that to feel a compulsion to continue to maintain that stand. They may not notice how reluctant they are to depart from that position.
  • If the negotiations last for a significant amount of time, perhaps a few hours, the person making the decision needs to go on a journey from their initial position to the point at which they can give instructions for a settlement. They cannot go on that journey if they are not present during the negotiations and are not affected by what happens. They need to be present.
  • If you perceive that the other side have painted themselves into a corner or are in a position where it would be embarrassing for them to back down, it may be helpful for you to build a golden bridge which will enable them to withdraw gracefully (and to give you what you want) without losing face. There is nothing wrong with helping them to do that.

Negotiations and mediations can be very interesting and rewarding, but also extremely challenging. An awareness of factors such as those set out above may help negotiating parties to avoid frustrating deadlock and to get more of what they want from the discussions.

For more information on our mediation services or dispute resolution services contact Peter Livingstone on 01935 846235 or email