Authors

Chris Guthrie

Document Type

Article

Publication Title

Marquette Law Review

Publication Date

2004

Page Number

829

Keywords

negotiation, persuasion, Robert Cialdini

Disciplines

Dispute Resolution and Arbitration | Law

Abstract

Negotiation is often viewed as an alternative to adjudication. In fact, however, negotiation and adjudication may be more alike than different because each is a process of persuasion. Both in the courtroom and at the bargaining table, the lawyer's primary task is to persuade someone other than her own client that her client's positions, interests, and perspectives should be honored. Despite this apparent similarity, persuasion operates differently in adjudication and negotiation because the lawyer seeks to influence a different party in each process. In adjudication, the lawyer seeks primarily to persuade the judge or jury hearing the case. The judge or jury is empowered to resolve the dispute unilaterally by applying rules of law to the relevant facts of the case. In negotiation, the lawyer seeks to persuade not a judge or jury, but rather her counterpart at the bargaining table. One's counterpart in negotiation is free to ignore the law and facts of the case but can only resolve the dispute through bilateral agreement. The import of these differences is that the lawyer must use different persuasive tactics in each process. In court, the lawyer can use various rhetorical and even dramatic devices to persuade the judge or jury to render a decision under the law that favors her client; in negotiation, the lawyer needs to use a more subtle set of devices to induce her counterpart to agree to enter into a favorable settlement. Psychologist Robert Cialdini has identified six persuasive devices or "weapons of influence" that a lawyer can use to induce her counterpart to settle on terms that are advantageous to her client. The purpose of this essay is to introduce Cialdini's principles of influence, explore how they operate, and explain how the lawyer-negotiator may be able to use them at the bargaining table.

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