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Negotiation and Certitude

Civil Negotiation and Mediation by Nancy Hudgins

I was certain for at least 50 years that there were 9 planets and the farthest one away was Pluto. Even now, I choose to believe that there are still 9 planets and the farthest one away is Pluto. It’s hard to give up beliefs formed in childhood.

In mediations, I see parties full of certitude all the time, which is interesting, since it’s an uncertain world. Sometimes it feels as if there is less certainty than there is uncertainty.

Take rationality, for instance. There is a lot of new research about how our brain works. It turns out our decision-making is, more often than not, based on irrationality not rationality. This is hard for a mediator steeped in law to grasp. After all, a key to tort law is understanding the “reasonable man” standard. I think many people self-select into law because they believe in rationality.

Now come How We Decide, The Hidden Brain, On Being Certain, Being Wrong, Sway, The Invisible Gorilla and Your Money and Your Brain. All of these books, published in the last several years, argue that much of our decision making is more irrational than intentional.

What’s a negotiator to do? For starters, we need to be thinking about these concepts when working with our clients. We need to be aware, but also wary, of their certitude. We need to ask questions to understand why they hold their beliefs and what they really want. Then we need to carefully test their reality.

If you believe your client is the impediment to a rational settlement, asking questions will help you to determine whether you’re at an impasse, or whether you or your client has faulty reasoning or has settled on an irrational position. With a bit of probing, you may find that a propitious settlement is within reach.


Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

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