Too often, the mindset in negotiating is completely adversarial – we are good, they are bad; we are right, they are wrong; we are just and they are unjust; and, perhaps most perniciously, we are reasonable and they are not and will not be so.
Even Ronald Reagan didn’t posture in this way – his famous cry was “trust but verify.” New research suggests a modification of that principle when conducting negotiations.
The American Psychological Association’s Psychology, Public Policy and Law is publishing “The Adversarial Mindset” by Simon, Ahn, Stenstrom and Read (2020). The authors begin by surveying the literature on negotiating and identify three controlling principles:
- The “myside bias,” the tendency to view a case and a position not objectively but through a more-favorable-than-justified lens. [In the world of trials, we sometimes call this “trial psychosis,” a delusional belief that the case is a winner despite devastating adverse proof.] What comes with this is what the authors describe as an “unfavorable perception of one’s counterpart.”
- The “otherside bias,” the assumption we make that our counterpart will not see things objectively but will construe the evidence and justness of the cause in a skewed manner. Accompanying this is the belief that your opponent begins from a point where they view you negatively.
- “Conflict and escalation.” Where myside and otherside bias prevail, parties may tend to escalate conflict due to inaccurate perceptions rather than tend toward “de-escation through cooperative behavior.”
To test these propositions, the authors conducted a series of tests, with individuals assigned to be an advocate on one or the other side in a dispute or to be the neutral third party advisor, a person directed to present the decisionmaker/arbitrator with a fair rendering of the facts that “do justice to both parties.” All three roles received the same factual background, facts intended to be decidedly circumstantial and ambiguous. The dispute was over whether an employee had stolen money.
Each participant ultimately rated the strength of the facts and judged how the opponent would likely view them. Role mattered – those assigned to the employee’s side viewed the facts more favorably than those assigned to represent the employer, with the neutral advisor coming down somewhere in the middle.
This is not all that was shown. Each adversary was asked to estimate how the opposing advocate viewed the evidence and over-estimated how badly the opponent would view the case. Put more simply, if one party represented the employee, that person over-estimated how the other side [the employer’s representative] would view the proof supporting guilt.
This was but one of the two studies the authors did, with the second largely confirming the first. The concern they identify is that when we view our opponents as more judgmental and less objective, escalatory tendencies emerge.
This summary just skims the surface. The details of each experiment are revealing; and the authors frame this as proving “coherence based reasoning,’ i.e., that the otherside and myside biases cohere to impact the judgments each adversary made. At the same time, there was some awareness of the likelihood that the ‘impartial’ mediator would more fairly assess the case’s strengths and weaknesses, taken by the authors as proof that there might be some self-awareness of the biases that afflict the adversaries’ judgment.
What are some of the upshots? The authors note the important role of mediators in asking each side to list the weaknesses in its position, a first step toward tempering views and avoiding escalation. They also found some reason to be optimistic:
Notwithstanding the wide and deep spreading of bias throughout the participants’ mental model of the case, our participants were considerably less biased when asked to assess how a neutral authority figure would view the case. In other words, our participants were cognizant of the fact that not everyone would share their view of the situation. It follows that they were to some degree aware that they were operating under the influence of bias. This partial awareness could provide an opening to bring adversaries to transcend their biased views, question their escalatory impulses, and seek cooperative solutions.
For those of us who teach negotiating and mediation, this and similar research is critical as it shows the need to educate our students to look at the case through the other party’s eye and needs, and not start from a position of absolute distrust.
The Adversarial Mindset will be published this year in Psychology, Public Policy and Law, https://psycnet.apa.org/PsycARTICLES/journal/law/26/1 It can also be found at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3573099
Thanks go to author Dan Simon for his presentation on this research at a faculty colloquium at Temple Beasley School of Law. For related research, see the March 27, 2020 New York Times article “In Negotiations, Givers Are Smarter Than Takers,” explaining how giving the opposing side something that it needs may lead to more successful negotiations. https://www.nytimes.com/2020/03/27/smarter-living/negotiation-tips-giver-taker.html?referringSource=articleShare
Reprinted in largely identical form with permission from the May 18, 2020 issue of THE LEGAL INTELLIGENCER. ©  ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.