Login | November 15, 2018

Law Bulletin: Negotiation lessons from an FBI professional

Law Bulletin columnist

Published: November 6, 2018

The title of the book “Never Split the Difference: Negotiating As if Your Life Depended on It” came as a shock to me. As a defense litigator, I’ve spent a great chunk of my life splitting the difference when settling cases.

The book, first published in 2016 by Harper Business, is eye-opening. It presents a systematic approach to negotiation. It should be required reading for anyone, especially lawyers, who negotiate for a living.

And let’s face it: Lawyers are not always the best negotiators. We tend to split the difference every time we settle.

Chris Voss, a former FBI “lead international kidnapping negotiator,” is the author of this interesting, highly accessible book that cuts through the fog surrounding the art of negotiation. It offers a clear, simple, nuts-and-bolts primer on how to negotiate.

Using stories from his own experience ranging from obtaining the release of Americans held abroad by terrorists and criminals to buying a “Salsa Red Pearl Toyota 4Runner” pickup truck, the skills needed for this new form of negotiation become clear.

First, they are based on recent findings in human science and behavior that emotional interests may influence negotiations more than economic ones.

Second, establishing a rapport or friendship makes it far easier and more likely to reach a deal.

Calibrated questions

Voss writes about a visit to Harvard University to take a short executive negotiating class. Attempting to turn the tables on him, Harvard’s Negotiation Research Project director invited him into his office, ostensibly for coffee. In walked the head negotiator for the Israel Defense Forces and security council. An exercise in negotiation ensued.

“We’ve got your son, Voss. Give us one million dollars or he dies. … I’m the kidnapper. What are you going to do?”

Voss just smiled. “How am I supposed to do that? … I don’t even know if he’s alive.”

Continuing, he said: “I really am sorry, but how I can get you any money right now, much less one million dollars, if I don’t even know he’s alive?”

Welcome to “calibrated questions” — queries that the other side can respond to but have no fixed answers. They buy you time while giving the other side the “illusion of control” because they are the ones with the answers and power, but it does all that without giving them any idea of how constrained they are by it.

It makes the other side consider how they will satisfy you, returning some control and power back to you. It’s not a “no,” not a “yes.” It’s something else. Unexpected. But not confrontational.

The radio DJ voice

A bank robbery-turned hostage situation had reached a stalemate during telephone negotiations. An NYPD lieutenant told Voss to switch with the current negotiator because it was the “only strategic play at our disposal that didn’t involve an escalation in force.”

The bank robber was upset at the change, but Voss soothed him with what he calls his “late-night FM DJ voice,” a lower, downward inflecting tone of voice that is the “voice of calm and reason.” He emphasizes that in negotiation how you say what you are saying is as important, or perhaps more important, than what you are saying.


Mirroring is essentially imitation, a neurobehavior humans display where we copy each other in order to comfort each other. It is a sign of bonding and establishes a rapport that leads to trust.

Voss reports that a psychological study showed that the average tip of a waiter who used mirroring — repeating the customer’s order back to them — was 70 percent more than those who used positive reinforcement, words like “great” or “no problem” or “sure.”

In negotiation, it helps build rapport and create common understanding among negotiators.

‘Don’t feel their pain, label it’

Labeling takes the rapport built by mirroring to the next level by demonstrating true listening. Labeling, also called “tactical empathy,” essentially sums up and labels the other side’s position.

In interviews, Voss calls it the single most effective negotiation trick used by his students in their jobs.

It involves listening carefully to the other side and sensing what emotions they are feeling that you want to highlight by labeling. Labeling always begins with the following words:

• “It seems like … (and you sum up their situation as they’ve expressed)

• “It sounds like …”

• “It looks like …”

Then silence. Let them respond.

Win without confrontation

In short, there’s a reason why Voss says negotiation is the “art of letting the other side have your way.” To sum up, you do the following:

• Use the late-night FM DJ voice.

• Start with “I’m sorry …”

• Mirror.

• Silence. At least four seconds of it to let the mirror work on your counterpart.

• Label it.

• Repeat.

Other questions answered

• Why you want to get a “no” before you get to “yes;”

• Why you should disclose your deadline;

• Why you don’t want to lead with a number in salary negotiations;

• Why “yes” is nothing without “how”;

• Why you don’t want to hear “you’re right,” and do want to hear “that’s right.”

“Never Split the Difference” is hard to put down with lessons that are hard to forget. It teaches you how to get what you want without being a jerk, without persuading and never splitting the difference.

Thomas N. Osran is a senior assistant general counsel at the Chicago Housing Authority.