03 Dec Principles of Persuasion

As a mediator, I regularly see disputants (and their lawyers) make counter productive attempts to persuade each other. These attempts at persuasion often drive parties away from (rather than towards) resolution and agreement. 

Three common mistakes are: 

1.     Misunderstanding who needs to be persuaded

In a negotiation or mediation, it is the other party who needs to be persuaded – not the mediator.  Disputants mistakenly frame their attempts at persuasion to be appealing to the mediator (who does not get to decide) or an imaginary Judge.  The way you persuade a Court is different to how you persuade the other side to a dispute.  

2.     Trying to persuade by threat and coercion

Disputants regularly try to persuade by pointing out the other side’s errors, and the retribution that will arise if they do not accept the threatener’s proposal.  Human beings resist threats instinctively.  This tendency to fight or flee from threats is increased at times of stress and conflict.  In addition, agreements made under pressure and coercion are commonly not complied with.  Negotiated agreements tend to fall apart unless both parties consider the agreement meets at least some of their needs.  

3.     Trying to persuade the other side with arguments which you find personally compelling

It is human nature to presume that other people are similar to us and that our own thinking and life view is normal (and that any differences are abnormal and unacceptable).  We overestimate the degree to which others share our views.  This results in parties to negotiations and mediations trying to persuade the other side with arguments they find personally compelling but which may actually be meaningless to the other.  Remember that you are in dispute with the other party because you each do not see things in the same way.  Your job in negotiation is to sell something to the other person.  You therefore have to consider what might be persuasive to them – not to you.  

Six Principles of Persuasion and Influence

Effective persuasion is about understanding the other side’s goals and motivation.  Cialdini (1) has written extensively about how sales people and marketers influence customers.  He has developed six “principles of influence” which are cues people (normally subconsciously) consider when considering requests from others.  These principles are effective in all negotiations. 

1.     Liking

Humans are social creatures and like to be liked.  People are more easily persuaded by people they like than by people they dislike.  When negotiating and attempting to persuade the other side, be nice to them, and try and make them like you.  There are two ways to make people like you.  Firstly, show you like them and be friendly to them.  Secondly, be like them.  Make yourself appear to be similar to them by finding common points.  Do not start discussing and exchanging offers until you sense that the other side likes you. 

2.     Social Proof

People assess correct behaviour by reference to what they see other people do.  The automatic logic of the human mind is that if everybody else is doing something then it is the right thing to do.  People do what other people do. Therefore, in negotiations and mediation, show the other side how other people have agreed to your proposal or solution in similar circumstances.  It is also useful to engage and behave in the negotiations process as you would like the other side to do.  If you want the other side to listen to you, you also need to listen to them.  If you wish the other side to be rational and consider the most significant issues, you need to do the same.  

3.    Commitment and Consistency 

People like to act consistently with their stated values and intentions.  It can be useful to commence negotiations or mediation by discussing and agreeing about general principles (such as the need to reach agreement, avoid Court, minimise delay and costs, etc) before exchanging offers.  By doing so when impasses are reached the other side will be more likely to remain at the negotiating table rather than make threats to leave, go to Court, etc.  People also do not like their world view to be challenged.  They are persuaded by reasons that are consistent with their world views.  Consider how to construct or pitch a proposal that matches the other side’s view of themselves.  This is more likely to be successful than arguing the other side should agree with your proposal because their proposal is mad, bad or wrong. 

4.     Scarcity 

People place greater value on things they consider scarce and not widely available.  In many disputes (especially family law) each side can only get what they need from the other party.  For example, a parent can only get an agreement for a parenting plan from the other parent.  Similarly, a spouse can only get an agreement as to a property settlement from the other spouse (or by going to Court).  In negotiations, it helps to emphasise that you are the only person who could meet the needs of the other party.  

5.     Authority

People like to be right but are often unsure what is right.  People are therefore heavily influenced by experts.  It is useful, therefore, to demonstrate expert knowledge (but without having to state it which may seem arrogant and counter productive to the first principle of liking) or associate yourself with expertise.  Another proxy for expertise is rapid and confident speech.  The confidence that is suggested by rapid delivery has been shown to have a significant persuasive effect.  Other cues for confidence, and therefore perceived expertise, is personal attractiveness and good grooming.  

6.     Reciprocity 

If you give the other side something, they feel obliged to give you something back (partially because they like to be liked).  The “thing” could be external to the substantive dispute (giving them coffee, the best seat or view, your time in listening to them first, etc) or internal to the substantive issues (eg:  a concession they value which may not be too important for you).  Cialdini suggests making a large demand.  When it is rejected, then request a smaller one.  Cialdini suggests that the other side may feel obliged to make a similar concession themselves.  Another way to achieve the same outcome is to make multiple offers so that the other side feels obliged to accept at least one. 

The common theme to each of these principles of persuasion is that you achieve the best results for yourself by paradoxically considering the dispute from the other side’s perspective (and showing it).