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PROS AND CONS OF RELYING ON INSTINCT AND INTUITION IN NEGOTIATION

“The intuitive mind is a sacred gift and the rational mind is a faithful servant.” Albert Einstein

Numerous publications, recordings, seminars, and courses are devoted to the study of negotiation. Many of them profess to reveal secrets to the art of successful negotiation. Others approach negotiation as a science rather than an art. When all is said and done, to me negotiation success comes from mastery of the fundamental communication skills, including listening, observing, questioning, and mindfulness (a/k/a awareness or being present) together with brainstorming creative, innovative or unconventional options.

While much has been be written and spoken about those latter skills as well, there isn’t as much said about two other essential ingredients of negotiation success — instinct and intuition. Based on our research, it seems like most of it comes from the field of psychology. My perspective, however, is based on actual experience in negotiation as a mediator for over 30 years and as a litigator for nearly 14 years.

The American Heritage Dictionary of the English Language defines “instinct” as the innate aspect of behavior not guided by reason but by reflex action or a powerful impulse. (Emphasis added.) Slightly different although similar, “intuition” is defined as knowing something without the use of rational processes, immediate cognition without activating reason. (Emphasis added.) Thus, instinct is based on impulsive reflex action whereas intuition is based on prior knowledge acquired under similar circumstances. In both behaviors, reason does not enter into the equation, and the end result is the same — quick thinking provides answers when relying on instinct and intuition.

According to Donald Trump in his 1987 book, The Art of the Deal:

“More than anything else, I think deal-making is an ability you’re born with. It’s in the genes. I don’t say that egotistically. It’s not about being brilliant. It does take a certain intelligence, but mostly it’s about instincts.”

On the other hand, Malcom Gladwell in his 2005 book, Blink: The Power of Thinking Without Thinking, explores the concept of instinct that he also refers to as “adaptive unconscious” or “rapid cognition”, contending that steps can be taken to shape and manage and educate our unconscious reactions:

“The power of knowing, in that first two seconds, is not a gift given magically to a fortunate few. It is an ability that we can all cultivate for ourselves.”

Using basketball and improvisational comedy as examples among others, Gladwell posits that how good a decision is, when it’s made under the fast-moving, high-stress conditions of rapid cognition, is a function of training and rules and rehearsal.

A third view is suggested by Robert Benjamin, an experienced mediator, trainer, teacher, and prolific author on the topics of negotiation and mediation. In his 2001 article entitled “Gut Instinct: A Mediator Prepares found at Mediate.com, he writes that formal professional education cannot offer the kinds of experience critical for the training of mediators.

“We have become over intellectualized—so caught-up in the throes of our theories that we have shelved our intuitive sensibilities or abandoned them altogether, relying instead on rules and formulas for how to respond.

The stroke of genius occurs, and the mediator turns from being a novice to sophisticated practitioner when he or she leaves the beaten path of received wisdom and allows their creative instinct to run free. Too often we are held prisoner by our theories that dictate what we should do and our training runs roughshod over our instincts.”

One way to allow creative instinct to run free is by brainstorming options. The process is simple, informal, effective and has three basic stages. It begins by generating as many ideas that come to mind as quickly as possible without ownership, advocacy, debate or judgements. After all ideas have been generated and listed on a whiteboard or flip chart for everyone to see, they are jointly evaluated during the second stage when different relevant factors are applied such as practicality, cost-benefit, satisfaction of interests and goals, and so forth. The last stage involves selecting the most promising solutions where the positive factors outweigh the negatives ones.

A cautionary tale is provided by Max Bazerman and Deepak Malhotra from Harvard Business School and the Program on Negotiation at Harvard Law School. In their article entitled “It’s Not Intuitive: Strategies for Negotiating More Rationally” appearing in the May 2006 edition of the Negotiation newsletter, they assert that most negotiators believe they are capable of distinguishing between situations in which they can safely rely on intuition from those that require more thought – – but often they are wrong. In fact, most of us trust our intuition more than evidence suggests that we should, according to the authors. Using optical illusions as an example for when intuition fails us, they observe that just as intuition biases our vision, it can sabotage our negotiations without our awareness.

What does my own experience “in the trenches” tell me about instinct and intuition? My answer is that they are reliable when they are the product of attentive listening, careful observation, open-ended non-judgmental questions, and focused presence, allowing one to draw inferences about the parties’ hidden or below-the-surface interests, priorities, and preferences that have now been revealed. Because negotiation and mediation are dynamic and evolving processes, mediators must be ever-vigilant in order to process new developments as they unfold and react quickly and correctly. It is at the point when emotions erupt or negotiations stall that instinct and intuition are activated and can play a vital role in remedying the situation. Then, we automatically do just what comes naturally. In the words of Ralph Waldo Emerson:

Trust your instinct to the end, though you can render no reason.”

Paul F. Monicatti is affiliated with Professional Resolution Experts of Michigan, LLC. He’s been an arbitrator since 1983 and a mediator since 1986 in all areas of the law except family law and criminal law. He’s earned the highest ratings possible from Martindale-Hubbell, Best Lawyers in America, Super Lawyer, U.S. News and World Report, Crain’s Detroit Business, and the international Who’s Who Legal: Mediation. A Michigan Lawyers Weekly 2019 Leader in the Law, he was named Best Lawyers’ 2019 Troy Area Mediation Lawyer of the Year, 2018 Troy Area Arbitration Lawyer of the Year, and 2011 Detroit Area ADR Lawyer of the Year. He’s served as a court-appointed mediator, settlement master, arbitrator, facilitator, case evaluator, receiver, expert witness, umpire, and referee. He authored the chapter on Mediation, Arbitration and Other Dispute Resolution Methods in addition to co-authoring the chapter on Settlement, Negotiation, and Alternative Dispute Resolution for ICLE’s Michigan Civil Procedure. He also teaches ADR Advocacy Skills at Western Michigan University Cooley Law School and is the co-founder of ADRoit Dispute Resolution, Strongbridge Negotiation Strategists, and the International Academy of Mediators.

Published in the Detroit Legal News on December 27, 2019.