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16 Harv. Negot. L. Rev. 263

Harvard Negotiation Law Review

Spring 2011

Symposium 2010: the Negotiation Within


Clark Freshmana1

Copyright (c) 2011 Harvard Negotiation Law Review; Clark Freshman

Prologue: Three Negotiations Within and Without

Consider first three tales and the negotiations within as I tried to understand the unspoken1 thoughts and feelings of others: a student who might kill himself; a negotiation with a dean over my salary offer; a student who cries. As you’d expect, I’ve changed names and certain identifying details.

Prologue One: The Suicidal Student

Depression is epidemic among students, and for many years, I share information in class with students about this.2 In this particular *264 year, I handed out information on signs of suicide. I also spoke of the depression that killed my mother and haunted me many times in my life. Many e-mailed me about how much the information helped. Weeks later, one student asked me to lunch. I expected him to talk about classes or jobs, but he eventually said he wanted to discuss “the other thing.” He noticed the handout emphasized changes--changes in weight, changes in interest. He hadn’t noticed any changes. But. “I’ve always felt kind of low,” he went on.

As I replayed the conversation in my head late at night, I remembered he added, “And I wonder if life is worth living.” How had I not picked up on that? Was he thinking of killing himself? When? Should I call him now, in the middle of the night? Wouldn’t that seem creepy? I replayed the images from the conversation. Nothing. But it was the dog that didn’t bark, as Sherlock Holmes taught. I couldn’t recall any signs of distress on his face. I e-mailed him in the morning and spoke to him in class. He said he meant the comment in an existential way--what is the point of life? Eventually, he got medical help, and he later organized a sports outing for people in our large class. Years later, he looked better and happy--even without a job! As I write this, I’m not happy with the story. It turned out fine, but it wasn’t clear it would. I wish I had picked up on his language and said something right away. As it turns out, by the way, Paul Ekman, one of the foremost scholars on lie detection, began some of his early research looking for signs of suicidal potential among patients who said they were fine.3

*265 Prologue Two: The Salary Negotiation

It was a classic example of what we all think of as a negotiation: The dean had to give me an offer. (I say “had to” because I can’t be sure if he really wanted me to come, could care less, cared a little . . . . He said he was pleased, but was he lying?) A key point was salary. That always matters, and it mattered a lot then. I had some interest in the job, but my biggest interest was getting an offer that I could use to persuade my own dean and other potential schools to offer me more money.4 A key point was salary: the dean insisted that I was being paid “as much as nearly anyone we’ve got.” I looked at him carefully as he spoke. I noticed no movement of his body. I listened. Voice the same calm drone I’d heard many times. Language the same folksy words many liked. Face barely moved. I noticed some flowers, and we talked about that. And I looked and listened. No change. Somewhat later, I asked again about how he considered the “pay” and how it might include other items like “summer salary” or “grants” or “bonuses”--was that all part of the equality? He talked, and I looked and listened again. Nothing. I brought up fundraising, and how he found that. I expected a bit of animation--I imagined some deans loved it, and some . . . not so much. Still no change.

I’d almost given up. I mentioned salary one last time. Oops! I dropped my pen. As I bent to pick it up, there it was. His leg was shaking. I pushed back a bit from the table and kept listening. Everything else was still the same. I continued to watch him. This time he changed the topic to my thoughts about moving.

Soon enough we were at the door. We were shaking goodbye. I looked him in the eye and said, “Thanks so much for your time. I know you have lots to do. I’m definitely interested, but I couldn’t even think about other issues unless we were ten percent higher on the salary.” Done, he said quickly, pumped my hand, and the door closed. Damn, I thought, I could have gone for twenty.

*266 Prologue Three: The Crying Student

Pat came into my office nearly every week of Civil Procedure. She showed me what she’d written in her outline of the week. It was almost always very complete. Sometimes she asked questions. That week was different. I noticed marked distress cross her face in a fraction of a second. Distress is one of the most reliable facial expressions. It is very hard to fake since it involves pushing up only the inner eyebrows.5 Darwin first discovered it, and Paul Ekman documented how it was a universal emotion among people from many different cultures. As we talked about some difficult technical doctrine, I saw it several times. But it wasn’t the doctrine. She was getting it right. And I complimented her. Finally, after seeing the distress several more times, I said, “You know, you’re doing great. But, you know, it’s so funny how many first-year students get distressed this time of the semester.”

She burst out crying. After a while, she “confessed” that she’d just been diagnosed with attention deficit disorder and feared she was not fit for law school.

Footnote: I witnessed a similar event recently. This time, we were on break from my law school class on emotion, lie detection, and negotiation. I was rushing to the bathroom. From the side, I thought I saw distress on one of my happiest students. She was a “repeat customer” from two other negotiation classes, and I knew her usual demeanor. But I wasn’t sure it was distress from the side - it’s only recently that Paul Ekman and others developed training tools to recognize emotions from the side. I crouched down and said, “How is everything?”

She thrust her cell phone at me. Her boyfriend had just broken up with her by text!

How have you judged me so far? Or rather: be mindful how you have judged “me” so far.6 If you’re human, we know you probably form lasting judgments from first impressions. And, if you’re a *267 psychologist, you know this as the recency effect, one of the predictable ways that the way nearly all of us think differs from the way rational economists posit.7 If you’re one of the truth wizards--one of the sixty or so people out of over 30,000 judged best at detecting deception--then you’re probably thinking something else.8 You may be thinking: he could be X or he could be Y. I’m not sure yet. And that was just one of the negotiations within about writing about the negotiation within: do I start by writing about an example of compassion, such as the suicidal student, or with one about, as one famous negotiation book puts it, bargaining for advantage? (Of course, I could also commit to negotiation as most do, just by “spontaneity” or “authenticity” and choose whatever story most came to mind.9 That might feel great at the time. But it’s also not especially “authentic”-- whether I have in mind the example of compassion or competition might depend, for me, on what I’d been doing just before I wrote. If I were meditating on friendship for my dog, I would likely lean to compassion. If I were reviewing my financial planning, I might lean to competition.)

I’d invite you now to commit to the Wizard Way. This is the Wizard Way because it is typical of the way many of those very best at lie detection think. Suspend your judgment as best you can. If you even remember much of what I say, no doubt someday you’ll conclude some of it was utterly foolish, or worse. But I suspect some of you will also find it opens up your eyes, ears, and mind to a new way of approaching the world, a world better informed by truth. Beware the tendency, so entrenched in law, to make all-or-nothing assessments, such as “Freshman really gets it,” or “Freshman

doesn’t have a clue.” This is the danger of what my friends Dan Shapiro and Roger Fisher call status spillover, the tendency to let your respect for someone’s expertise in one realm spill over into your *268 assessment of her knowledge in another.10 (Beware even that last sentence and the use of “she”--does it mean I’m a feminist or sensitive to editors?11 That I’m a feminist and worthy of trust or a feminist and hopelessly deluded?)

As you must now realize, I spend a lot of time wondering what people are thinking and feeling, when they’re lying, and mostly, how to dodge lies, uncover truth, and make deals. This worries people sometimes. That’s not too bad because people may tell the truth more when they think I’ll figure it out anyway. But the view of lie detection, emotional awareness and negotiation often is a wrong one. And that is bad: people think dodging lies, uncovering truth, and making deals is some combination of unpleasant, overwhelming, and evil. It makes people worry about negotiation, and worry itself is a bad thing. It also is too bad because people who worry feel bad, and people who feel bad often make worse deals--not just for themselves, but for everyone around them.12

If you want to master dodging lies and making deals, you need to understand several types of negotiations within. First, there is the set of negotiations over how one pays attention to clues to emotion and lies. Recall my focus not just on what the dean said in my salary negotiation but his voice itself, his face, his language patterns, his upper body and, of course, his tell-tale leg. Second, there is the negotiation over how one engages with other parties--often a *269 negotiation within between such parts of you that want to share whatever you see (the spontaneous self) and the more restrained parts of yourself. Third, whether you engage another or not, there is the negotiation within over how you interpret what you see (was the dean lying?) and how you act (I asked for more).As with much you’ve read about other negotiation approaches, the negotiations within may take place in different orders.13 When you see some soft spot, it may seem the first question is how to interpret it. What do I make of the dean’s leg moving? Other times it may be to decide how to engage with another person in order to help with the interpretation. If you think someone is feeling something, you might just ask, as I did with my “suicidal” student. Even the first step of how you pay attention may arise again and again. Once I notice that someone does something suspicious, like the dean’s leg, I may want to pay closer attention--closer attention perhaps just to one set of clues, like his legs, or even closer attention to other clues.

The Basic Model of Emotional Awareness and Lie Detection

To get “my” model of negotiation within, it helps to understand my sense of negotiation, emotion, and lie detection a bit more generally. I say “my” a bit sheepishly. I owe a huge debt to many wonderful teachers, so I don’t want to suggest my approach is entirely original or a tribute to my own abilities to master such a daunting subject through my own special merit.14 I owe special thanks to Paul Ekman, now most famous perhaps as the inspiration for television’s Lie to Me and *270 its scientific advisor. I’ve taught material he developed to Homeland Security, and I’ve used his published research as one of the major starting points for my own writing and teaching.15 I do say “my” because the mix does reflect something of my own mix of research, technical observations, and as will become clear by the end, ethical and moral values about the role of the negotiator, the scholar of negotiation, and the teacher of negotiation. And I therefore don’t want to implicate those who were kind enough to share their expertise with the burden of what I now write, teach, and otherwise do. I imagine each of you has your own approach to these topics that you could rightfully and accurately call yours.

Let me share two bits of background. First, consider below what steps one might take to dodge lies and make better deals. Next consider in a bit more detail why I think those steps matter.

Here are the basic steps. Before a negotiation begins, I consider various emotional and information goals. Usually, I try to pick an appropriate emotional environment. Most of the time, people get better results when they have more positive emotion and less negative emotion. (In some instances, negative emotion may work better, and I occasionally choose environments and media that I know may risk--or even foster--negative emotion, such as e-mail.) That positive set-up is also key to dodging lies and getting at the truth.

That’s because of the second step of looking for soft spots. I define “soft spots” as signs of emotion and/or heightened thinking and/or deception. Paul Ekman speaks of “hot spots,” and that’s the language we used to train security officials with Homeland Security and other agencies.16 But “hot spots” connotes the kind of jumpiness and wariness you’d want in security officials. “Soft spots,” in contrast, suggests the range of responses that the negotiator and lawyer has. Apropos of therapeutic jurisprudence, soft spots can be a chance for *271 empathy or compassion. Or, as with the dean in my salary negotiation, they can be a chance to press for advantage. From research, I know the most reliable soft spots involve very fast changes in the face that reveal concealed emotions.17 The distressed students, for example, both showed signs of agony in the way that their eyebrows drew together and the inner eyebrows pushed up, forming a kind of horseshoe patterns. When these emotions are concealed, consciously or automatically, they often appear as fast as one-thirtieth of a second.

Step three often involves interpreting soft spots. When I see a soft spot, I generally know that there is an emotion there because it fits with one of the seven universal facial expressions of emotion. But there’s much I don’t know. I don’t know how long it will last. And I don’t know why it’s there. Some research suggests that, when people lie, they show microexpressions of emotion seventy percent of the time. But people show microexpressions of emotions for many other reasons. That brings us back to step one. If I haven’t set up a calm enough environment, I may see fear simply because the person isn’t comfortable. I therefore have far less of an idea whether they are lying or just uncomfortable.

I say step three often involves interpretation for several reasons. Sometimes the emotion itself tells me enough. If I’m interviewing someone to sit with my dog, and I see anger, I can stop there. I don’t want anger around my dog. (Others may disagree. They might view “anger” as a “normal” part of life, sometimes even appropriate.)18 A strong negative emotion may tell me that the time is simply not ripe for creative problem-solving, and I may just move to a different topic or take a break.

Step four involves action. Often steps three and four cycle back and forth. In order to interpret someone’s anger, I “act” by forming a hypothesis. For example, when I get contempt or anger as I’m explaining a most favored nations clause, I might hypothesize the *272 person either won’t agree to such a clause or doesn’t understand it. So I might act by saying something. The response would then help me form a clearer interpretation. This in turn would help me act differently. If I couldn’t get the clause, I would consider my alternative deals. If this deal looked attractive, I might then consider different arguments for the clause, check out the deal further, or press on other points.

Often there’s a final compliance check. I want to make sure the person leaves with the impression I want, usually meaning a sense that our deal or our interaction is fair. That is often strategic in part. I know many people drag their feet on deals or just break them.19 In wrapping up, I will often summarize how well the deal has gone. For example, with less sophisticated negotiators, I will note how we may have moved towards the middle. “We started far apart. I wanted you to pay me $15,000, and you wanted $90,000. We ended up at about $35,000, and that’s in the middle, but a bit closer to where you started.” I don’t try this with more sophisticated parties since they know “meeting in the middle” is just arbitrary given that the starting points are often arbitrary.

My fairness concern is also partly a feature of my own preferences, needs, or interests. I care about others, and sometimes their joy is partly my joy, and their sorrow is partly mine as well. The idea that I only care about my physical body is particularly Western and particularly twentieth-century male.20 When my partner says he doesn’t mind doing the dishes everyday if I just manage the taxes, I really do want to know that this feels okay to him. It helps that our therapist and he both say they find washing dishes therapeutic--and I don’t see any signs of deception from either.

Now let’s consider these four steps in the context of my broader take on emotion and negotiation. If I were watching you read this, I’d have another negotiation within by now. If I saw you were agreeing earlier, or at least not showing negative emotion, then I might very well *273 skip this “deeper” or “broader” explanation. It’s enough to know how to manage emotion and detect lies without having to know why it matters. And there’s the chance some of you who liked the mechanical steps may feel less enthused about my broader take--or might just find it less well-written! But here goes.

Consider what I suggest you do, and then consider below why I think this will be a very good payoff. By very good payoff, I don’t mean you will, as one rather overselling author put it, “you’ll never be lied to again.” Nor do I mean that you’ll get everything that you want, or even everything you “need.” Rather, I offer the kind of modest promise that Vanguard and other passive funds offer their investors. Remember Vanguard doesn’t claim you do better every year. They say, and they’re right: they just claim investing in one of their broad, passive funds rather than trusting the next Warren Buffett wannabe or even the ever-aging Warren Buffett himself, is more likely to yield higher returns based on past performance.21 They just say that you’ll be better off overall in most instances.22 In a parallel way, if you follow the emotional awareness and lie detection model I teach, most of you will do better over the course of all your negotiations. Neither Vanguard nor I are right for every play or every player. After all, some research suggests that those investing in local businesses will do better than the local market. And, with emotional awareness and lie detection, some of you will be hopeless in a technical sense. Not many--even those with autism and schizophrenia can improve.23 And some of you may find it too messy along the way, perhaps being flooded by all of the emotions you become aware of. One student told me, after I taught a version of nonverbal recognition of emotion: “You may notice I show a lot of contempt.” I was expecting him to say, “I was thinking of someone else.” But instead they said, “I feel that way about a lot of people.”

Apart from these four steps to dodging lies, there are also many reasons to be aware of emotions themselves. Indeed, I often teach “lie

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