In my last post, I mentioned that I enjoy reading the work of former FBI hostage negotiator, and now CEO & Founder of the Black Swan Group, Chris Voss. In his blog, The Edge, he writes frequently about effective communication techniques and tactics.

It’s a given that communicating effectively is a fundamental requirement of our work as lawyers — particularly in litigation. I know I give a lot of thought and attention to being understood. Whether you’re writing a brief, arguing a case to a jury or drafting a contract, being clearly understood is critical to your success. At the same time, it’s equally important that we understand others.

As a mediator, I often play the role of interpreter for parties. I’ll get information from one side in a caucus, and, with their permission, I’ll share it with the other side. As an interpreter, I routinely find it necessary to eliminate excessive negativity in the messages I’m asked to share, before communicating those messages to the other room. I’m talking about the kind of opinionated antagonism that does nothing to support a position, but can easily inflame the other side’s emotions — which does nothing to help resolve a case.

In my mediation course at the University of Alabama’s law school, I teach students two techniques I use: Restating and Reframing. The terms are often used interchangeably, and in some ways the techniques are similar, but they’re fundamentally different.

Say that again, only nicer.

When I restate to a party or advocate what they’ve said to me, the primary purpose is to let them know they’ve been heard. Additionally however, I’ll often restate what I heard, using more neutral language — seeking to focus on a party’s interests, while removing blame and accusatory language from their statements. After restating what’s been said to me, I’ll follow-up with a question such as, “Did I understand you correctly?” I’ll pursue that line of questioning until the speaker agrees that I’ve correctly restated what they said to me.

Chris Voss, refers to Restating as “Mirroring.” For you Scrabble fans, the $50 Word for Mirroring is Isopraxism.

When Mirroring, you repeat the last three words (or the critical one to three words) of whatever someone has just said. Voss describes it as a neuro behavior in which humans copy each other to comfort one another. It’s an unconscious behavior, and it’s a sign that people are bonding and in sync. It establishes a kind of rapport that leads to trust and understanding.

An example Voss gives:

A caller asks: “Do you have a few minutes to talk?”

Response: “A few minutes to talk?”

It is subtle and may seem unnecessary, but it works to communicate you are listening and understood.

Same message, new focus

In Reframing a message, the mediator states disputed issues in a more neutral manner — with a focus on potential outcomes. The purpose of Reframing is not only to change the harsh effect of antagonistic words, but also to create a new dynamic in a mediation. Reframing is useful in changing the focus of a statement from – –

– – blame and guilt to problem solving.
– – past to future.
– – judgmental to nonjudgmental.
– – position to interest.
– – ultimatum to aspiration.

Two examples of Reframing:

ORIGINAL STATEMENT: “I can’t believe this hospital would continue employing practices that allow patients’ well-being to be jeopardized for the sake of money.”

BECOMES: “Mr. Smith, I see that you’re concerned about how your mother was treated by the hospital staff.”

ORIGINAL STATEMENT: “I want $7500 for the damage to my car that this stupid, irresponsible teenager caused.”

BECOMES: “You believe the accident was not your fault and you need $7500 to fix your car.”

Think about what really matters.

Together, Mirroring and Reframing can be effectively used in any communication (whether with your spouse, your children, a client or an adversary) where you want to show that you understand someone, or where you seek to focus a party on their end goal (or their interest) rather than on their position. And isn’t the end result what matters most in any dispute?


One author I enjoy reading is former FBI hostage negotiator, and now CEO & Founder of the Black Swan Group, Chris Voss. He’s has been blogging on his area of expertise since 2013. (If you’re a frequent flyer, you might be interested in this post: Negotiating a Seat on a Plane When There Isn’t One).

In 2016, Voss wrote the book Never Split the Difference: Negotiating As If Your Life Depended On It — which has a five-star rating, and over 1600 reviews on Amazon.

A much-in-demand speaker, Voss also teaches a seminar entitled Tactical Empathy. That title really intrigues me. In a video promoting the seminar, he says, “The key to being heard is hearing your counterpart first.”

If I’m being honest, I typically want others to hear me before I hear them. I certainly want to speak before I listen. On the other hand, why does it matter who hears who first — as long as you get heard, right? Why should we care who’s the first to be heard?

If Voss is right, then maybe we should make sure that whoever we’re negotiating with feels like they’ve been heard first. Particularly if it helps them hear us. When you think about it, Voss’s claim is a lot like the truth once offered by Zig Ziglar: You can have everything in life you want, if you will help enough other people get what they want.

What might tactical empathy look like in a mediation?

First, as the title indicates, I should put myself in the opposition’s shoes. I should assure them that I understand their position; and that I understand how my position — and what I’m asking them to do — may be difficult for them. After all, there are two sides in every dispute — and each side has its needs, goals and fears.

If letting your opposition know that you understand their position actually enables you to be heard, and ultimately gain an advantage in negotiating, why wouldn’t you do it?

I suspect this approach is foreign to most of us.

It was to me. Looking back on my practice as a litigator, I can’t honestly say I would have been unwilling to use it. But it sure is different from the way I used to negotiate.

So what might Tactical Empathy look like in your negotiations? Maybe it involves you conceding to opposing counsel that you understand why they find it difficult to convince their client of your position’s legitimacy — before you advance that position. (IE: “I can see why your client might think I’m being unreasonable in this negotiation.” “Given your defenses to my claim, I understand why your client is unwilling to agree to my demands.” “However… hear me out.”)

It’s human nature. Use it.

Tactical empathy speaks to a fundamental human need I addressed in a previous post: The need to be heard. It involves making sure the other side feels heard before we ask them to hear us. It’s an approach that can work for you in negotiations with anyone — from your wife and children to co-workers and opposing counsel.

Let’s say your daughter has a problem with her curfew. You might tell her you understand why she thinks she should be allowed to stay out later (For instance, she might be embarrassed her friends’ curfews are later than hers). You might even admit to understanding why she thinks you’re being unreasonable. That should make it easier for her to accept what comes next: “However, the curfew time we’ve chosen is one we’re comfortable with because…”

Give it a try and let me know what you think. Enjoy the journey!