Learning from Practice Open Access

In its early days, the Program on Negotiation at Harvard Law School (PON) sponsored a “devising seminar” for faculty from affiliated schools and universities. Each month a practitioner would present us with a challenging real‐world problem and we would offer strategies and techniques for solving it. The seminar was an expression of PON's commitment to interdisciplinary work that bridges theory and practice.

One evening our guest was an American diplomat involved in arms limitation talks between the United States and the Soviet Union. Another time it was the federal official charged with finding a permanent location for high‐level radioactive waste. The sessions were stimulating and convivial, although I doubt that many of our off‐the‐cuff observations, made over dinner and wine, sparked big breakthroughs.

My colleagues and I were the real beneficiaries. These sessions provided an ongoing forum for understanding and integrating perspectives from our various fields and disciplines. We were a diverse bunch, if only in respect to the range of domains we represented among us: psychology, anthropology, sociology, decision science, economics, international relations, organizational behavior, law, and planning. Refracting a single problem through those lenses revealed both the power and the limitations of each of our particular perspectives.

There were also times when our practitioners had something to teach us. I recall in particular a hostage negotiator from the Federal Bureau of Investigation (FBI) who described the kind of crisis situations that he dealt with all too regularly. “My job,” he began, “involves dealing with sociopaths who are having a bad day.” He asked us to imagine a bank robber who dreams he'll walk into the building and less than a minute later walk out with bags overflowing with cash. Instead, somebody trips a silent alarm. Now he's trapped in the bank, surrounded by police officers whose rifles are trained on the doors and windows. The two dozen employees and customers there inside with him are now his hostages. The officer in charge calls the FBI, and fifteen minutes later our seminar guest, the negotiator, arrives on the scene. He's handed a telephone. The perpetrator is on the other end of the line.

Our FBI agent turned to us and asked, “So … what's the first thing I should I say?”

Most of us sitting around a big table at the Harvard Faculty Club ducked our guest's gaze by finding something to examine on our plates. Out of the corner of my eye, I saw a single hand finally go up. One of our best‐liked colleagues was willing to volunteer an answer. “I would begin by introducing myself,” he said, “and explain that I was there to help negotiate a satisfactory agreement. Then I'd ask this person for his name and have him tell me what his interests are.”

Our FBI guest nodded politely and allowed that was one possible approach. “I do it somewhat differently, though. At that point, I'm not thinking about interests and outcomes,” he said. “Instead, my sole focus is keeping the conversation going.”

If you stop to think about it, that's obviously the top priority. The standoff won't be resolved in the first few minutes. And nothing good will happen if the lines of communication are broken. When a deal finally is reached, it won't be about satisfying the parties’ respective interests by having them trade “some of this for some of that.”

For me, the agent's “keep the conversation going” precept wasn't merely simple pragmatism. It reflected a different mindset. Relationship‐building, not problem‐solving, had to be paramount. Success on that plane requires using empathy to imagine what one's counterpart is thinking and feeling in that moment.

Putting deal‐making aside is liberating. It allows the FBI agent to concentrate on the interaction, free from the distraction of thinking about possible offers or demands. Instead every ounce of attention can be focused on the few things under the agent's control: his or her own emotional state and behavior.

Using empathy also helps the negotiator establish boundaries, suggesting what not to do, such as asking the hostage‐taker (with the best of intentions) to identify himself. (Yes, I'm assuming the hostage taker is a male.) At that moment, he has no reason to reveal his identity. Why ask a question that would ramp up his anxiety and defensiveness?

That I recall that seminar decades later, especially the contrast between interest‐based and relationally oriented approaches, says something about the power of compelling examples. The circumstances in kidnapping are extreme, of course. The stakes couldn't be higher, and the challenge of dealing with dangerous, often unstable criminals is far beyond what most of us confront. But shouldn't “keep the conversation going” be a watchword in any negotiation? We can't assume it will always magically happen—or that if it does, it will happen as smoothly as it might.

To my ear, at least, this relational element is not fully captured by maxims about “working from interests, not positions,” “insisting on objective criteria,” or even “separating the people from the problem.” It might sit comfortably alongside those admonitions, but it reflects a fundamentally different orientation.

Dramatic changes in FBI policy were prompted in 1993 by the bloody end to the siege in Waco, Texas, in which seventy‐six people died. Afterward, at a meeting of thirty‐five experienced law enforcement officers, not a single one reported having been in a classic bargaining situation in which problem‐solving proved to be the best technique. By contrast, in Never Split the Difference, Chris Voss reports that each and every one of them confirmed that they had negotiated “an incident in a dynamic, intense, uncertain environment where the hostage‐taker was in emotional crisis and had no clear demands” (15).

As a result, the bureau and related agencies shifted their training emphasis from quid pro quo bargaining to the psychological skills needed in crisis situations. According to Voss, the agency came to recognize that “[e]motions and emotional intelligence would have to be central to effective negotiation, not things to be overcome” (15). In many respects, the FBI was reaffirming what our devising seminar guest had told us ten years earlier.

Like his predecessor, Voss distinguishes his approach from what he regards as the central tendency of PON‐connected faculty to favor a rationalistic, analytic framework that is focused on “expanding the pie” through substantive value creation. Actually, “distinguishes” is putting it too mildly: in some places, he scoffs at it. Some of my colleagues may justly feel that in setting up supposed PON doctrine as a straw man, Voss has ignored the depth, variety, and subtlety of their work.

It would be a shame, though, if readers concluded that the differences he professes are irreconcilable—that we must either shred Getting to Yes (Fisher, Ury, and Patton 1991) and its progeny, or do the same with Voss's new book. I believe he breaks important new ground. In certain instances it contradicts received wisdom, but many more of his important insights complement and extend familiar principles, rather than vie with them.

The most intriguing and potentially useful parts of Never Split the Difference are those that analyze interpersonal dynamics in granular detail. As Voss says, “When deliberating on a negotiation strategy or approach, people tend to focus all their energies on what to say or do, but it's how we are (our general demeanor and delivery) that is both the easiest thing to enact and the most immediately effective mode of influence” (32). Of his various techniques for engaging counterparts in highly charged situations, three in particular strike me as compelling.

The first is what Voss calls “tactical empathy.” “This is listening as a martial art, balancing the subtle behaviors of emotional intelligence and the assertive skills of influence, to gain access to the mind of another person. Contrary to popular opinion, listening is not a passive activity. It is the most active thing you can do” (16).

For him this isn't the same as “active listening,” merely confirming facts and letting the other person know he or she has been heard. He wants to attend to emotional content. He also avoids using the first person singular pronoun on the belief that “I” sounds judgmental and gets people's guard up. Voss also uses “labeling” to speak to people's emotions.

For example, Voss would never say, “If I understand you correctly, you think ….” Instead he'd say, “It seems like you worry that if you open the door, we'll come in with guns blazing” (54). That rephrasing removes him personally from the sentence and recasts whatever emotion he has sensed. Sometimes Voss deliberately mislabels what he hears in order to get the other person to correct him and take active ownership of their feelings.

My hunch is that his various linguistic rules (avoiding “I” and “why,” for example) are often correct. More important is his underlying intent, “paying attention to another human being, asking what they are feeling, and making a commitment to understand their world” (52). That motivation, in turn, embodies his larger commitment to empathy. When he negotiates, he uses what he calls “my Late‐night FM DJ voice” (page 31, emphasis in original). It's deep and slow. Almost hypnotic. He pauses. Frequently. This pacing lets the other party fill in the silences. And that helps keep the conversation going.

Second, I'm intrigued by Voss's ease about hearing a “no” from the other person. He welcomes the word. It's where the negotiation really begins. “We have it backward,” he writes. “For good negotiators, ‘No’ is pure gold. That negative provides a great opportunity for you and the other party to clarify what you really want by eliminating what you don't want” (75). He believes saying “no” gives people a feeling of security and control and relaxes their defenses. He writes that “if your biggest fear is ‘No’, you can't negotiate. You're the hostage of ‘Yes’. You're handcuffed. You're done” (88).

On hearing “no,” Voss is careful not to seek an explanation by asking “why”? Well‐intended inquiry can sound rhetorical and accusatory (as in, “Why did you do that?”). He doesn't want to invite self‐justification that locks people into their positions. Instead Voss favors questions that start with “how” or “what.” Asking “What caused you to do it?” externalizes the motivation and takes the person off the hook.

His approach neatly complements William Ury's (2007) notion of a “positive no.” When we state “no” ourselves, Ury explains, we're standing up for something else that's important to us. That refusal is an affirmative “yes” to our own interests and values. Ury advises that when saying “no,” we should take another step and couple it with a proposition—a “yes” to some other solution that might be feasible. Thus the sequence might be: “No, I'm afraid I can't come in to work this weekend, as I have a family commitment. But I could stay later this evening if that would help get the project done.”

In Voss's former FBI work, he couldn't count on hostage takers being so nimble verbally. Therefore, upon hearing a flat “no,” he would prompt Ury's addendum by asking, “What would you consider instead?” Voss calls this formulation a calibrated question because it's open‐ended, designed to invite exploration of other solutions. “What it does is remove aggression from conversations by acknowledging the other side openly, without resistance. In doing so, it lets you introduce ideas and requests without sounding pushy. It allows you to nudge” (141).

Third, Voss believes the reasons why your counterpart won't make a deal with you are often more powerful than why they will. Ignoring their objections or—worse—challenging them may make things worse. “Denying barriers or negative influences gives them credence,” he says. The smart thing is to “get them into the open” on your terms (72).

To prepare for any negotiation, Voss advises conducting what he calls an “accusation audit.” List the worst things the other party could say about you or your proposal and be proactive. It's disarming if you state them yourself before the other person puts them on the table. When Voss does this himself, he happily goes over the top. “[B]ecause these accusations often sound exaggerated when said aloud, speaking them will encourage the other person to claim quite the opposite is true” (73).

In the book, he tells a story about a consulting job he was trying to land. He had teamed up with some partners, but before the deal was struck, the client cut the budget significantly. That meant that the fees would be less than what Voss had originally offered his partners. When he called them to break the bad news, the first words out of his mouth were, “I have a lousy proposition for you.” Voss went on to say that he knew that they would think he was a “big talker” and that he had “screwed up completely.” Anticipating their negative reaction, he knew that he needed to clear the air. But after berating himself, he added, “Still I wanted to bring this opportunity to you before I took it to someone else.” And as you might expect, after a little grumbling, his partners agreed to cut their rates (128–129).

This technique echoes Deborah Kolb's admonition to “Know the other person's ‘good reasons’ for saying no” (Kolb 2015: 130). My own version of this precept is, “To get a yes, expect a no.” What Voss has added is the pre‐emptive element. Instead of simply having counter‐arguments on hand for objections that your counterpart may raise, nip them in the bud.

Voss is decidedly not an interest‐based, problem‐solving negotiator and unabashedly so. “The win‐win mindset pushed by so many negotiation experts is usually ineffective and often disastrous,” he says. “At best it satisfies neither side. And if you employ with a counterpart who has a win‐lose approach, you're setting yourself up to be swindled” (115). Even so, I'm not convinced that Voss's view of negotiation is as diametrically opposed to advocates of “win‐win” negotiation and other interest‐based approaches as that quote would suggest. I've already given some examples of where his ideas fit well with other people's work.

On the other hand, he does espouse a different mindset. That he often succeeds warrants our interest and our respect. He's on the money, for instance, when he says, “If you approach a negotiation thinking that the other guy thinks like you, you're wrong. That's not empathy. That's projection” (121). Likewise when he says, “Until you know what you are dealing with, you don't know who you're dealing with” (26). And I've heard PON colleagues say something very close to, “We learned that negotiating was coaxing, not overcoming; co‐opting, not defeating” (141).

Perhaps he was nudged by an editor to use Getting to Yes in particular as a foil, but over the years its three authors all explored the relational aspect of negotiation. Ury certainly has done that in Getting Past No and The Power of a Positive No, which I've already mentioned. Bruce Patton's Difficult Conversations (co‐authored by Douglas Stone and Sheila Heen) delves deeply into emotions. And Roger Fisher himself (with Daniel Shapiro) explored emotions in Beyond Reason. Others of us have ventured into that territory, as well, notably in the chapter on empathy and assertiveness in Beyond Winning by Robert Mnookin, Scott Peppet, and Andrew Tulumello.

None of that is to say, however, that Never Split the Difference is redundant or derivative. Its greatest strength is taking the interaction between negotiators as the unit of analysis, instead of the thoughts and actions of one individual. Voss's observations about language and behavior are thought‐provoking and useful.

Another book on hostage negotiation, Strangers on a Bridge: The Case of Colonel Abel and Francis Gary Powers by James Donovan, recently reappeared, fifty years after its original publication. (It's the basis of the Steven Spielberg movie Bridge of Spies, in which Tom Hanks plays the role of Donovan.) Strangers is not a text or how‐to book. Rather it's Donovan's first‐person account of negotiating the swap in 1962 of convicted Soviet agent Rudolf Abel for the American pilot Francis Gary Powers, whose spy plane was shot down deep into Russian territory. His story is riveting, instructive, and witty.

Donovan was a New York lawyer drafted by the U.S. government to lead this secret negotiation. During World War Two he had served as General Counsel to the Office of Strategic Services, the precursor of the Central Intelligence Agency (CIA). After the war he was an associate prosecutor at the Nuremberg war crimes trials in Germany. Then he went into private practice in New York.

The Cold War was in full bloom in the early sixties. The failure of the U.S.‐sponsored Cuban invasion (the Bay of Pigs) was an embarrassment for newly elected President John F. Kennedy. Then the Berlin Wall went up in the summer of 1961. Using a civilian to broker the exchange in this environment was convenient. Talks could proceed secretly. If Donovan failed, his efforts could be disavowed. The downside for the U.S. government, was having less control over how Donovan crafted and executed his strategy. The more deeply Donovan got involved in the case, the harder it became to cut him loose.

Donovan graduated from Harvard Law School long before negotiation was a staple of the curriculum and before negotiation books became a popular genre. In Strangers, he doesn't articulate a theory of negotiation, nor does he state rules of thumb, but his strategic brilliance and impressive interpersonal skill shine through his description of all that led up to making the deal.

The story of the swap ends with him waiting on Berlin's Glienicke Bridge, with a team of U.S. intelligence officers, for the release of two prisoners, not just one. The government was focused on Powers, but Donovan also wanted a little‐known American student, Frederick Pryor, included as part of the package. Pryor had just been arrested for espionage by the East German authorities. The Soviets claimed that they had no sway with the German Democratic Republic, although that was a lie. In turn, East German officials insisted that Pryor would be released only if the U.S. were to make a gesture acknowledging their independent sovereignty.

Donovan held out, exasperating not only the parties he was negotiating with, but his own government, which was worried that his intransigence would blow up the deal for Powers. “The game of chess was being played out, but it seemed to me that decisive action was necessary despite the caution urged by Washington. Unless a strong step were taken by us, either the mission collapsed entirely or the Soviets would conclude that if they held out long enough, only Powers would have to be freed” (412).

Following posturing on all sides, Donovan prevailed and arrangements were made so that Abel and Powers would be exchanged on Glienicke Bridge at 8 a.m. local time. (It was 2 a.m. in Washington, where President Kennedy monitored the situation on an open line.) As a face‐saving measure, Pryor was to be quietly handed over elsewhere in Berlin at Checkpoint Charlie, so that the Soviets and East Germans wouldn't be publicly seen as having been on the short end of a two‐for‐one deal.

The moment for Pryor's release came and went without any sign of him. The Germans apparently were still testing Donovan's resolve. He didn't buckle. Donovan had concluded—correctly, it turned out—that in the end Abel was important enough to the Soviets that they would compel their East German “allies” to surrender Pryor without any further compensation. In fact, as part of the deal, Donovan had also won Russian assurances that another imprisoned American, Marvin Makinen, would be quietly released soon thereafter.

Recounted in this way, Donovan's story squarely fits the negotiation analytic model that many of us teach and apply today. He mapped all the stakeholders, both at and away from the table. He understood the interests of the key parties, including their political needs. He experienced on a personal level the tensions that arise when the goals of agents and principals aren't perfectly aligned.

The outcome was not inevitable. Hardliners on the Soviet–East German side might have miscalculated or been as stubborn as Donovan was himself. Although Donovan isn't explicit in the book about how he weighed that risk, he clearly knew that he might go home empty‐handed. It appears that he was ready to do exactly that if need be. That wouldn't necessarily have ended the negotiation, of course. A U.S. official, or some other emissary, might have stepped in to try to save the deal, although without the benefit of the valuable relationships that Donovan had built with all the parties.

I have only summarized the concluding moves of what was actually a protracted process. Donovan had already been connected with Abel for almost five years before they finally said farewell on the bridge in Berlin. Donovan had been Abel's defense lawyer in 1957 when Abel had been arrested and tried for espionage. In addition, the West was growing concerned that the United States was falling behind in the nuclear arms race with the Soviet Union—it didn't help that the Soviets had launched Sputnik, the first manmade satellite, while Abel's trial was under way. The evidence against him was circumstantial and key information apparently had been gathered without a warrant, but Abel had been found guilty and sentenced to thirty years in prison.

Donovan helped Abel escape the death penalty by arguing at the sentence hearing that “It is possible that in the foreseeable future an American of equivalent rank will be captured by Soviet Russia or an ally; at such time an exchange of prisoners through diplomatic channels could be considered to be in the best interests of the U.S.” (260). The value of that bargaining chip became manifest two‐and‐a‐half years later when the Russians captured Powers.

Donovan had the foresight to start a diary soon after he began working on Abel's behalf. In an early entry, he wrote (“a little stiffly,” he later commented), “We are two dissimilar men drawn close by fate and American law … into a classic case which deserves classic treatment” (5). In the book he is not given to mulling his own psychology or describing his behavior in tactical terms. But his contemporaneous notes enabled Donovan to describe his relationships with Abel (and others) in detail, and provide dialogue of key conversations.

Tom Hanks's portrayal in Bridge of Spies matches the nature and bearing of the Jim Donovan who emerges from the pages of his book: self‐assured, but not overbearing; both patient and decisive; and consistently curious and nonjudgmental about others. Donovan was unflappable, as well. His counterparts lied to him, sometimes even about their real identities. In West Berlin, while the CIA operatives stayed in a swank hotel, they booked Donovan into a freezing hovel. Maybe they did so for cover; perhaps they meant to put him in his place. He describes all of this with no hint of rancor or resentment.

Donovan's relationship with Rudolf Abel is particularly telling. Both were on unfamiliar territory. This was the first time that Abel had been arrested and for Donovan, it was his first espionage case. They quickly became close. Donovan believed that “the fact I had a wartime background in espionage apparently led Abel to regard me as sort of a retired spy who could appreciate his professional predicament” (51). They also shared a wry sense of humor. In an early interview Abel, who had been sleeping nude when the FBI burst into his apartment, said, “I guess they caught me with my pants down” (15).

Abel consented to having Donovan represent him and concurred with his legal strategy. Donovan expressed his hope that Abel would cooperate with the U.S. government by disclosing information about other agents, but his client sharply declined the invitation to be a “rat” (Abel's word), and Donovan respected him for that. He regarded Abel not as a traitor but as a loyal citizen serving another country.

That relationship persisted after Abel's conviction and after Donovan's appeal to the U.S. Supreme Court was narrowly rejected in a five‐to‐four vote. (Donovan's former law professor Justice Felix Frankfurter wrote the majority opinion.) He traveled to Atlanta several times to visit Abel, and they corresponded, as well.

That passage tells us as much about Donovan as it does about Abel. He tells his story with warmth and color. What we can't really know is how he came to become the person he was, what part of his nature was innate and how much it was shaped by his upbringing and education.¹

Even so, we can infer how he viewed and practiced negotiation from his detailed account. Other than his one “chess game” reference, he never characterizes his strategy or labels his moves. His approach clearly involved both head and heart. He was a master analyst who deftly orchestrated and monitored “moves away from the table” in the spirit of David Lax and James Sebenius's 3‐D Negotiation (2006).

He was equally adept at connecting personally with all sorts of people, as Chris Voss noted earlier this year in a blog post entitled “The 3 Stealth Negotiation Weapons of ‘Bridge of Spies’ James Donovan” (available at http://tinyurl.com/jgng4w5). The three “weapons” Voss names are personal traits, not tricks or gambits: patience, likeability, and flexibility. Voss was impressed that Donovan treated everyone with respect, whether or not they deserved it. “If you're likeable, your hard‐bargaining counterparts will stay in the game as your patience wears them down.” Likeability enables you to say “no” to particular proposals without seeming to rebuff the other party personally.

In his post Voss also saluted Donovan for revising his goals upward as the negotiation unfolded. “He knew that focus often equates to inflexibility, to wearing blinders,” he wrote. “Never be so sure of what you want that you wouldn't take something better.” Donovan's original mission was to secure Francis Gary Powers's freedom. He did that. But Donovan also brought home Frederick Pryor, and he engineered the release of Marvin Makinen not long after.

In March 2016, PON hosted a special screening and discussion of Bridge of Spies. Harvard Law School Dean Martha Minow chaired the panel and commended Donovan for embodying the highest ideals of the legal profession by representing a Soviet spy at the height of the Cold war. Donovan's granddaughter, Beth Ambrosi, provided a welcome personal perspective on him.

I was asked to comment on negotiation issues. I noted that Donovan was not a one‐trick pony. Several months after his success in Berlin, he was asked to negotiate the release of prisoners in Cuba who had been captured a year earlier in the Bay of Pigs fiasco. On December 21, 1962, barely two months after the Cuban Missile Crisis, he signed an agreement with Cuban leader Fidel Castro that freed 1,113 prisoners in exchange for $53 million in food and medical supplies. But as usual, Donovan wasn't done. The following July he won the release of the prisoners' family members, 9,703 men, women, and children who also had been held in detention.

The audience for the recent event was much larger and more diverse in every respect than the faculty group that gathered for our devising seminars so many years ago. But much of the same spirit of learning from practice—and learning from one another—was blessedly still there. Missing, of course, was our remarkable protagonist James Donovan, who died young at age 53, just a few years after the publication of his book. At long last he is receiving richly deserved acclaim. He still has much to teach us.