We learn in law school that the best way to achieve a great settlement is to prepare vigorously for trial, building a powerful legal argument emphasizing facts that fit our theory of the case, while challenging the significance of those that harm us.
But what if we are committed to interest-based negotiations, in which the parties agree to work only toward settlement, without threats of taking it to the judge? Collaborative law and some mediation models are based on this premise. Competing predictions about which lawyer has the more powerful legal argument to present to Judge Jones don’t mean much if the agreed pathway to settlement is finding solutions that both parties will accept as good enough.
So, after we hang up positional legal argumentation alongside our other weapons outside the negotiating room door, what tools remain to help us guide our clients toward “yes”?
Consider storytelling as part of your settlement toolbox. The most skillful trial advocates have always used narratives in presenting their cases to juries, because of the singular power of stories to persuade. Social psychologists are now beginning to unravel the mechanisms by which stories exert such power, as compared to logical argumentation.
It’s pretty much a truism in the world of neuroscience and cognitive/social psychology that our emotions drive our decisions and choices, and that we often use our rational faculties after the fact to justify decisions that our limbic brains made in an instant without any conscious thought. Rhetorical argumentation–the marshalling of facts and logical reasoning to push for a given outcome or viewpoint–appeals to the rational part of our brain, but for many if not most of the decisions that our disputing clients will be called upon to make during settlement negotiations, emotion has already driven the train into the station before reason ever registers the name of the destination.
Enter storytelling. A recent journal article, Narrative Persuasion in Legal Settings: What’s the Story?, makes the case that through stories, we can speak directly to the limbic or emotional brain of listeners and trigger emotional connections that may powerfully influence opinions and decisions, and may even change pre-existing contrary beliefs..
“…studies have shown that narratives influence beliefs and attitudes in part by encouraging empathetic and emotional connections with story characters (Heath, Bell, & Sternberg, 2001; Oatley, 1999). The power of narratives to influence emotion relates to basic research within social psychology that shows that opinions and beliefs typically have both emotional and rational bases (Chaiken, Pomerantz, & Giner-Sorolla, 1994; Crites, Fabrigar, & Petty, 1994). Some opinions and beliefs are primarily emotional in nature (e.g., ice cream), whereas others are primarily rational (e.g., vacuum cleaners). Further research has demonstrated that it is often difficult to influence attitudes that are held emotionally using rationalistic, rhetorical arguments (e.g., Fabrigar & Petty, 1999). Narratives then, appear to be uniquely suited to changing opinions and beliefs which are held emotionally, and which may be resistant to other forms of persuasion.” (Emphasis added.)
The psychologist authors go on to explain that when we employ the rational tools of argumentative persuasion, the rational brain of the listener who holds another position responds with internal skepticism and counter-argument. A powerful story well told, however, can take the listener into a world of imaginative emotional resonance entirely beyond the reach of the skeptical, argumentative rational brain. (Green & Brock, 2000; Slater & Rouner, 2002).
While our work as lawyers will always be reason-based at its core, and while techniques and skills that help our clients return to rational problem-solving after emotional meltdowns will always be vital to our work, stories unfold in a deeper realm where the emotions that drive our clients’ conflicts reside. Weaving narratives into the settlement process has the potential to unlock openness to new ideas in situations where rational arguments may simply cause parties to dig their heels in even more deeply.