Preparing For Strong Emotions In Negotiations: Your Clients’. . . And Yours

November 29, 2010

As a practicing lawyer, I never thought much about emotions. If anything, I made an effort not to feel them. Yes, my clients had them, but that’s why they hired me—so that I could be their dispassionate advocate. Yes, I had them, but dwelling on them only made me compassionate, not dispassionate, so I ignored them. That philosophy worked pretty well in trial preparation and trial, but not so well in negotiations and mediations.

Strong emotions come up in every negotiation. Your client feels them and you feel them. It therefore makes sense to plan for, and address, emotions–the elephant in the room.

Prepare your clients by letting them know that during the mediation, they will have strong emotions, mostly negative. Tell them that in similar circumstances you have had clients who felt anxious, perhaps a little fearful, angry, vindictive, used, disrespected, etc. Explain the back-and-forth of negotiations, an arena in which most likely they will feel devalued. A party in a recent mediation made this point beautifully: he said he felt like a used car being haggled over.

Prepare yourself. It’s a rare mediation in which at least one lawyer doesn’t get angry. The causes are many: a lowball initial offer, a failure of the other side to reciprocate in concessions, a feeling that you are being jerked around, etc. Enter every negotiation with some strategies for dealing with strong emotions: a well thought out plan of concessions, three deep breaths (this actually works—ask the neuroscientists), taking a physical break and walking around outside, becoming the fly on the wall and looking at the big picture, etc.

By having a conversation with your client before the mediation, you can help defuse some of this reactivity, which will allow your client to be more objective in considering demands and offers. By having a conversation with yourself, you can be less reactive, too. Reactivity is not the place from which you want to be negotiating.

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 >