Getting the Deal Done: Part III

by: Amit Patel, Jury Consultant

As attorneys, we devote much our time to the substance of our arguments for persuasive presentation to opposing counsel, mediators, judges, and jurors. This is rightfully so as we persuade with facts. However, in this COVID era, many courts either remain closed or if open, are seriously backlogged with cases. This means that an increasing number of cases are likely to be decided via negotiation and settlement, rather than in the courtroom.

So, what does cognitive science have to say about what more we can do to persuade, and help us to move others to see things from our point of view? I’ve explored the art of persuasion in negotiation in previous articles here: [Part I] and [Part II]. Here, I present the third article in the series with three more interrelated tips based on cognitive science that will bolster your persuasiveness, help you connect with your negotiation counterpart, and ultimately get the case resolved.

Sync your grey matter with theirs

Picture yourself in a stressful situation, a job interview perhaps. Suddenly, the interviewer cracks a joke, you both laugh hysterically, the stress melts away, and the conversation goes smoother as a result. Neuroscience research reveals that these shared emotions can synchronize our brains’ grey matter. We understand one another better when we’re synced emotionally, and it’s one of the reasons why stories are so powerful in convincing people.

Neuroscientist Lauri Nummenmaa studies brain synchronization. Her research indicates that neural synchronization promotes “social interaction and understanding,” and “enhance[s] our ability to predict each other’s actions.” It is theorized “emotion equates the physiological state of the listener with that of the speaker, which makes it more likely that the listener will process incoming information in a similar manner to how the speaker sees it. This is why eliciting emotion can help in communicating your ideas and having others share your point of view, whether you are conversing with just one individual or talking to thousands.”

During your next negotiation meeting with opposing counsel, don’t hesitate to open with a joke or story. Once you’ve connected emotionally, you can focus on connecting with reason– your substantive arguments. The research says they’ll be more receptive to your arguments, and you’ll put yourself in a better position to succeed.

Get ‘em talking about themselves

We love talking about ourselves, and others listening to what we have to say. It triggers the same sensation of pleasure in the brain as food or money, according to research by Harvard neuroscientists. It is so rewarding to our brains that people are even willing to forgo money to do it. So why does it matter if we are liked? According to persuasion expert Dr. Robert Cialdini, it affects our chances of being influenced by that person.

Building on the “grey matter” tip, when meeting up with opposing counsel for a mediation or settlement negotiation, build rapport by asking open-ended questions about them and their interests. Take a look at their LinkedIn or firm bio page to find out who they are beyond an adversary, but as a human being and person with likes and dislikes just like you. You can even utilize this in the courtroom during voir dire, drawing from jurors’ answers to the juror questionnaire.

Caffeinate ‘em with a cup of joe

A large body of research indicates that intermediate doses of caffeine benefits information processing. In particular, attention, semantic memory, and logical reasoning are effected. Since these processes are involved in the persuasion process, researchers from the University of Queensland set out to determine if caffeine consumption affects persuasion.

The researchers found that moderate amounts of caffeine consumption can bolster our attention and agreement to persuasive arguments. In the experiments, study participants were asked about their attitudes towards voluntary euthanasia before and after reading persuasive arguments that were counter-attitudinal to their beliefs. Those participants who ingested caffeine equivalent to two cups of coffee versus a placebo prior to being exposed to the arguments exhibited greater agreement with arguments, message-related thinking, as well as argument recall. So, try and meet with your counterpart in the morning over coffee and maybe even a bagel or donut. As a bonus, your counterpart (and you) will be less likely to succumb to decision fatigue, a phenomenon covered by my colleague Dr. Dennis Stolle in this video.

In negotiations, moving the needle even a little in your favor can help realize the goal of settling your case during a time where courts are largely not in session, and may not be for the foreseeable future. In fact, many jurisdictions are encouraging alternate dispute resolution as a way of reducing an ever-increasing backlog of cases. Utilizing the research-backed tips provided in this three-part series in conjunction with one another, you can increase your persuasiveness and counterparts’ reception to your arguments to get the deal done.

Barker, E. (2018, October 08). New neuroscience reveals 7 secrets that will make you persuasive. Retrieved March 23, 2021, from https://www.bakadesuyo.com/2018/10/persuasive

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Schenker, M. (2020, December 03). How to use Cialdini’s 6 principles of persuasion to boost conversions. Retrieved March 8, 2021, from https://cxl.com/blog/cialdinis-principles-persuasion/#:~:text=According%20to%20Cialdini%2C%20it%20affects,superficial%20interest%2C%20like%20physical%20attractiveness

Sharot, T. (2017). The Influential Mind: What the Brain Reveals About Our Power to Change Others. New York: Picador.

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