“The most critical thing in a negotiation is to get inside your opponent’s head and figure out what he really wants.” Jacob Lew
When we think about lawyers and lawyering, empathy is probably not the first trait we would ascribe to either the profession or the practice. Instead, much of the general public perceives lawyers as fast-talking, cut-throat, egotistical, even manipulative (think “SuitsLA”). Perhaps surprisingly, though, empathy can be one of a lawyer’s greatest strengths, especially when it comes to the art of negotiation. Whether you are negotiating with an employer, client, opposing counsel, or even family or friends, empathy disarms, softens, and fosters connection – all of which can lead to a more favorable outcome for all parties.
Recognition of Empathy's Role in Legal Practice
Legal scholars and educators have recognized the value of empathy in legal practice for decades. Yet as recently as 2018, William Blatt, a law professor at the University of Miami noted that “[m]uch of what is missing from legal education falls within the domain of ‘emotional intelligence,’ an aptitude that assumes increasing importance over one's career.”
My experience in the early 90’s validates Blatt’s observation. Law school focused on intellectual persuasion—the power of logic over emotions—to win the day in both litigation and transactional practice. Private practice only reinforced the “get tough or get going” philosophy, leaving virtually no room for empathy or emotional intelligence. My first job in a big firm taught me to negotiate dispassionately, draft craftily, and focus only on MY client’s goals. No room for empathizing with the other side. For many years, I thought the techniques I was taught were getting the best results possible for our clients. But over the last three decades of legal practice (the majority in the still largely male-dominated field of construction), my view has changed. Empathy rocks!
Recently, law schools have begun to recognize and incorporate empathy training in their curricula; there are dozens of articles in psychology and legal journals touting the benefits of empathy. In my personal experience, however, empathy is still largely lacking in real life legal practice, and its worth is vastly undervalued. Instead, the tired old methodologies of bullying, pressure, puffery, and just plain stubbornness are often the norm. As master negotiator and creator of the Art of Feminine Negotiation program Cindy Watson has noted, we still tend to define success “based almost exclusively on a traditional masculine model fueled by competition. We’re led to believe that negotiation is all about the bark and bite – that toughness carries the day.”
Women Lawyers and Empathy
The legal industry’s general tendency to overlook empathy as a bargaining tool may unwittingly give an edge to women lawyers. It turns out women have some distinct advantages when it comes to deploying empathy as a bargaining tool. Although studies disagree on whether men or women differ in their ability to feel what another person is feeling (“affective” or “emotional” empathy), adolescent and adult women generally score higher on cognitive and behavioral empathy, the ability to understand and externally respond to the feelings of another. Diana Divecha, Ph.D., a developmental psychologist, observed in 2012 that these differences “seem to show up later…when more girls than boys express their concern for others.” Although babies show little difference in empathy based on gender, by adulthood, women are better at finding the appropriate behavior (condolences or congratulations) to express their empathic response. Some experts have surmised that this difference correlates better to gender roles and societal norms than biological sex. In other words, cognitive and behavioral empathy may be learned rather than biologically programmed.
How to Practice Empathy in Your Legal Career
Whether innate or learned, women’s aptitude for expressing empathy (as opposed to just feeling it) is key to using this skill in the legal environment. But aptitude is strengthened by practice – so, how exactly does one use empathy as a lawyer? According to several experts, here are some high-level tips for enhancing your empathic skills in the legal workplace:
Identify - but don’t lose your identity. Emotional empathy, defined as feeling the emotions of another person, is the first step to empathic negotiation. But don’t let it take over, or it can cloud your judgment and hinder your ability to achieve a fair deal. By over-focusing on the other party’s problems and emotional state, you may make decisions based on emotion rather than logic and agree to terms that aren’t the best for you or your client. Instead, shift quickly to cognitive and behavioral empathy. This is the response part of empathy, in which, after gaining the perspective of your counterparty or opponent, you disarm them by creating a feeling of safety and trust and an opportunity for the counterparty to feel heard.
DO let go of your ego. Understand that your goal is to discover the “need under the need.” Don’t worry about being right. Instead, concern yourself with getting the results you’re seeking. That’s your real agenda, not re-educating the opposing party on the state of the law or reminding them of your many years of experience in whatever it is you’re negotiating about.
Listen well. Be attentive and shift your body language to more closely align with that of your counterparty (known as “mirroring”) which has been shown to allow your brain to align with theirs. This “neural resonance” invites the other side to reveal underlying information about what they want or need, or outside concerns that are affecting their stance. (By the way, I’ve found this to be effective even in Teams or Zoom meetings as well!)
Use open-ended questions, paraphrasing, and silence effectively. Open ended questions should be nonjudgmental, genuine inquiries that invite narrative. Questions that start with “how” and “what” are open ended. Paraphrasing (sometimes called “labeling”) is when you verbally reflect back to the other person what you heard. Sentences that start with “I think what I’m hearing is that…” or “It sounds like…” validate the other person’s emotions by acknowledging them and leads to greater trust and collaboration.
Silence in a negotiation setting can be unnerving. Yet it’s that very awkwardness that encourages the other side to keep talking to elaborate on their point. The goal here is to allow them to feel safe enough to reveal more information by giving them time to expand on their position without interruption.
Find common ground. Use the information gleaned from the above tactics to find common ground and move the negotiations toward your end goals. As one expert advises, “Empathy helps you see potential areas where both parties can benefit. Use this insight to propose solutions that meet the other party's underlying interests while advancing your own. Empathy doesn’t mean giving up your position—it means using a deeper understanding to craft smarter offers.”
Know when to cut bait. Despite its overall value, empathy doesn’t always work; it’s important that your empathic skills include the ability to discern when you are engaged in negotiations with someone with whom empathy will not be effective. Sometimes a counterparty simply is not willing or able to share their own feelings or perspective, making it hard to find common ground. Peg Streep, a frequent contributor to Psychology Today, observed in 2017, “Social convention and contexts play a role in how empathic a person is in any given situation, regardless of the individual capacity for empathy.” If you’re not gaining any ground or sense negotiations deteriorating, shift to another tool in your negotiating toolbox.
To these tips I would add the following:
Don’t rush it. Easier said than done, I know, when a senior partner or the client is pushing an extreme deadline. But—kind of like stretching before a run—establishing common ground and empathy with your counterparty at the beginning of a negotiation may seem like a waste of time, but it can pay off with a better finish line for your client.
Be genuine. You can’t fake empathy. Invariably, feigned interest is exposed. There may be times you just don’t have fuel in the tank to give a damn about what is behind the other side’s demands. If so, fall back on another technique. Or find one emotion that’s relatable with the other side, even if it’s just shared frustration over the day’s rush hour traffic. If you can find one thing to empathize with, it can quickly open you and your opposition up to a better rapport, a rhythm of give and take, that can improve negotiations—and your relationship with your counterparty—dramatically.
It wasn’t until I left private practice twenty years ago for an in-house position with greater autonomy that I was able to experiment more freely with my negotiating style. Incorporating the empathy tools discussed above has helped me be better at my job and far, far happier while I’m doing it. As I’ve incorporated empathic techniques at the office over the past several years, I’ve discovered a new love for the work itself. I feel more connected to others and to myself, as I recognize the commonalities among us. Seeking to understand the needs of others has led me to better understand and fulfill my emotional and physical needs as well. Research has shown that empathic people may be better able to access their own emotions, which can enhance mental health on a day-to-day basis. I have certainly found that to be true, and I hope you do as well. After all, as Henry David Thoreau once asked, “Could a greater miracle take place than for us to look through each other’s eyes for an instant?”
As a veteran of thirty years of legal practice, Melanie Houk welcomes the opportunity to look back on a career nearer to completion than commencement. A graduate of Loyola Law School, Melanie initially took a nontraditional direction, leaving a first-year position at Whitman Breed Abbott & Morgan to take a job as a consultant. Eventually returning to private practice, Melanie spent nearly a decade developing further public law expertise with redevelopment agencies and municipalities before gravitating to an in-house position at Lennar Corporation, where a markedly convoluted path led her to a promotion to Deputy General Counsel, a position she has held for close to fifteen years.