Negotiation is a process of reaching an agreement by which both parties are satisfied, or equally unsatisfied. It is a process that requires patience, persistence, and skill. There are many different factors that can affect the outcome of a negotiation and one of them is arrogance. Arrogance in negotiations has been defined as one party believing they are more powerful or valuable than the other party. This belief usually comes from confidence in that party’s legal analysis or belief in their version of the facts.
This can lead to an impasse because the arrogant person will not be willing to compromise or negotiate with the other party.
Confidence in your position is necessary to be a successful negotiator but there is a fine line between confidence and arrogance. In this article, we examine why too much of a good thing can be counterproductive and how to spot the difference between confidence and arrogance in your negotiations.
To identify why productive self-confidence can become counterproductive, we start by considering important characteristics of good negotiations. Good negotiators do two things, among others, well: 1) they accurately assess their own strengths and weaknesses and 2) they do the same for the opposing party. Obviously, in a legal dispute, this involves a critical assessment of the law and the facts to which that law must be applied, the parties desire or need to settle, and the parties ability to continue to fight, among other things. Arrogance makes evaluating the other side’s strengths and weaknesses difficult.
Most litigators have had cases where the facts and the law seem so favorable to our position that it is near impossible to understand why the other side continues the fight. It’s easy in that situation to assume that it must be that the other party is getting bad legal advice or the client is lying to their lawyer. Conclusions like this block or at least skew our attempts to understand. Nothing should scare a litigator more than an inability to see the other side.
In my experience good negotiators, in the words of Stephen Covey, seek first to understand and then to be understood. Studies have shown that over-confidence makes it difficult to accurately assess the other side’s bargaining power. The Harvard Program on Negotiation (“PON”) calls overconfidence a cognitive bias. See, Business Negotiation Skills to Curb Your Overconfidence. According to the PON you should never let your confidence stand in the way of considering the other side’s bargaining power. It is in the small concessions and/or admissions that a negotiator obtains the information necessary to make this assessment.
A good negotiator always asks herself why the other side is taking the position they are taking and why they do not see the case the same way I do. See my article on Why and Why Not? A good mediator should be pushing even the arrogant advocate to consider the other side. My experience has been consistent with the PON’s view of arrogance. That is, it is extremely difficult to force the over-confident advocate to consider the case from an opposing viewpoint and maintain the neutrality that is the stock in trade of a facilitative mediator.
The best negotiations involve a collaborative problem-solving mindset. Arrogant negotiators tend to undervalue the importance of active listening and learning from others. They assume they have all the answers and overlook valuable insights and perspectives. By disregarding alternative viewpoints and creative solutions, they may miss out on innovative ideas or mutually beneficial compromises. Arrogance limits their ability to explore new possibilities and find win-win outcomes.
If confidence is good but arrogance is bad, where is the line? There may not be a single answer to this question but it does lead to the question: is there a place in your negotiations for feigned arrogance, i.e., using it as a strategy or ploy? I think the correct answer is sometimes but only cautiously. When planning for a negotiation, consider what effect extreme confidence or even arrogance will have on the other party; is it likely to sow the seeds of doubt or stiffen the other side’s resolve.
You should also consider whether your confidence is based upon faulty facts or incomplete legal analysis. If there is any possibility (e.g., early mediation) the risks of arrogance are very high. And how do you know if you are not actively listening to the other side. Leading with arrogance makes it difficult or impossible to make concessions without exacting a price commensurate with your concession. Going from arrogance to uncompensated concessions is a sign of weakness you do not want to show.
It is a rare opening session, when a plaintiff concedes the holes in her case or a defendant concedes liability and I am not suggesting that you do so. But suggesting that you are open to learning why you or your client should reconsider their position is an invitation worth making in almost every mediation.
By stating or implying an openness to be corrected, you also put yourself in a better position to influence the other side. Arrogance suggests pure, blinders-on advocacy. Humility suggests a more objective assessment that has the potential to influence the other side.
In my experience, the best way to avoid crossing the line from confidence to arrogance is to consider the possibility that there is more than one way to look at the facts and/or law. Ask yourself, could I be wrong?
Conclusion: Arrogance has no place in negotiations because it hampers productive dialogue, damages relationships, and restricts problem-solving capabilities. There may be a place for confidence bordering on arrogance but by embracing humility, empathy, and open-mindedness, negotiators can create an environment conducive to constructive collaboration and optimal outcomes. Cultivating these qualities will not only enhance negotiation effectiveness but open the possibility of more favorable outcomes.