THE IMPORTANCE OF INFORMATION EXCHANGE IN LEGAL NEGOTIATION

October 18, 2012

When the serious discussions begin, negotiators have to generate efficient information exchanges. What is the optimal way to learn about the other side’s needs and interests? ASK QUESTIONS! The most effective bargainers ask twice as many questions as their less proficient cohorts. At the beginning of interactions, individuals should ask broad, open-ended inquiries which are designed to induce the other side to talk. The more they speak, the more they disclose. Persons tend to believe that their opponents know as much about their own circumstances as they know, and they often disclose important information which the other side does not yet possess. Active listening is an excellent way to induce others to disclose more. Head nods, smiles, and statements summarizing what has been said are likely to keep others talking. Silence and patience are also beneficial. Persons tend to fill silent voids with additional disclosures.

As the negotiators get further into their interaction, the participants should ask more what and why questions. The what questions are designed to determine the issues to be addressed, while the why questions are used to go behind the stated positions and explore the underlying interests of the parties. One side may be asking for something the other side is not prepared to provide, but if they appreciate what the asking party’s underlying interests are, they may be able to satisfy those needs in a different manner.

What information are you willing to disclose and how should you disclose it? Negotiators must be willing to let the other side know what they actually want if the interaction is going to be successful, but the manner of disclosure can be critical. People who volunteer their important information are likely to have that information undervalued due to reactive devaluation. Their opponents assume that they are being somewhat deceptive and manipulative, and they devalue what they hear. On the other hand, if persons release their critical information slowly in response to opponent questions, their answers are more likely to be heard and credited.

Although bargainers must be willing to let the other side know what they want if mutual accords are to be achieved, most skilled negotiators under- or over-state the value of items for strategic purposes. If they think the other side really wants something they do not particularly value, they over-state their interest in that item to make the other side feel they are obtaining a significant concession when they get it. On the other hand, if they really want something they think their opponent does not value, they under-state their interest in that term to disguise the degree of concession being made by the other side.