Using “Tactical Empathy” In Mediations

August 9, 2018By Bill RatliffUncategorized

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!

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