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Empathy is a Vital Skill for an Effective Negotiator.

Empathy: A Vital Skill for an Effective Negotiator

Empathy is the highest form of knowledge. Bill Bullard

Empathy is to see with the eyes of another, to listen with the ears of another and to feel with the heart of another.

Listening is to stand in somebody else’s shoes, to see through their eyes, that’s how peace begins…Empathy is the quality of character that can change the world. Former President Barak Obama.


Empathy is an amazingly critical skill for an effective negotiator. Empathy is challenging. It is not being compassionate. It is not being sympathetic. It is not agreeing. The first step in empathy is listening, really listening to what the parties have to say. The second step is understanding. The third step is displaying to the other party that you have listened and do understand.

Non-empathetic examples:

-Example: I have messed up my life.

Response: You think you have messed up your life. My life is so messed up that my children will not speak to me.

-EX: I am confused by your argument.

Response: Let me summarize my argument again and let’s move on to problem solving.

-EX: I don’t feel comfortable with this agreement.

Response: We have negotiated this situation for 4 hours and you did not object during this time.

-EX: Everything I do; I do damage.

Response: That is the story of my life, damage.

-EX: I am concerned about Sara.

Response: Don’t think about Sara. It is time to move on.

Now, the same examples with empathetic responses:

-I have messed up my life.

Response: That must feel horrible. What has happened?

-I am confused by your argument.

Response: Sorry, that you are confused. What confuses you?

-I don’t feel comfortable with this agreement.

Response: What about the agreement makes you feel uncomfortable?

-Everything I do; I do damage.

Response: What a terrible feeling. What damage have you done?

-I am concerned about Sara.

Response: I can see that. What concerns you about Sara?

Analysis: If one compares the non-empathetic response with the empathetic response, one will see in the latter that the listener is “present in the moment” with the talker. In the former, the listener has moved on in the conversation. In the empathetic response, the listener is first showing that they have heard the talker and second, the listener is seeking greater understanding by asking questions.

Obama Declared Empathy as #1 Characteristic for SCOTUS selection.

In 2010, former President Barak Obama declared that the number one characteristic for which he was looking for in U.S. Supreme Court (SCOTUS) nominees was “empathy.” He was resoundingly derided by some who stated that legal skills, legal reason and legal knowledge should be the required characteristic. The term empathy became “radioactive” and Obama avoided the term subsequently as did his nominee:

“The dispute became so contentious last year that even Mr. Obama’s nominee for the court, Sonia Sotomayor, disavowed the notion of empathy during hearings before her confirmation, saying that “judges can’t rely on what’s in their heart.”

What Obama was promoting was the SCOTUS Judges be able to see cases that are brought before them through their eyes.

Type of SCOTUS Cases.

Obama most likely was thinking of what is actually the rare case of civil rights. Think of a transgendered student trying to gain access to school facilities. Think of a prisoner trying to be free of abusive conditions. Think of the poor African American individual who is subjected to a car police search based on discrimination But, these are few and far between.

SCOTUS receives on the average of 7,500 petitions per year. For a case to be heard, there must be “a writ of certiorari” or a sign off by at least 4 Justices. During 2019, SCOTUS heard 70 cases. This is noteworthy since during the 1980’s SCOTUS usually heard about 150 cases. Many of these concerned business or corporate interests. The U.S. Chamber of Commerce often becomes involved in these cases and their success rate is 70%.

Now, look at some of the cases accepted for this term 2020/2021.

-Ford Motor Co. v. Montana Eighth Judicial District Court involving ability of state courts to resolve claims vs manufacturers.

-Nestle USA, Inc. v. Doe I, involving corporate immunity.

-Rutledge v. Pharmaceutical Care Management Association, regulation of abusive prescription drug reimbursement practices.

-Collins v. Mnuchin involving whether CFPB (consumer bureau) is an independent agency.

This sampling does not really include the types of cases to which Obama was referring when he spoke of empathy.

One might go out on a limb and say the federal judicial appointees by President Donald J. Trump do have empathy with the businesses, corporations and governmental entities who come before them constantly.

Summary on Judicial Empathy: Judicial empathy refers to a way of ruling on cases in which a judge's personal feelings of empathy toward those involved affect how the judge decides the case. Implicitly required in judicial empathy is not only an understanding of the litigant's mental state but also a showing of identification with the litigant.

Scientific Analysis of Empathy.

Philosopher Adam Smith promoted the idea of “moral sentiment” that may be equated with the intrinsically pro-social idea of empathy. “When we empathize…we mirror the distress of another.” Some consider empathy to be the basis of modern social interaction. To be scientific, “mirror neurons” have been identified in the key brain regions of the amygdala, which is involved in the regulation of emotional learning. Further the prefrontal cortex is the part of the brain that modulates self-awareness and our awareness of other people’s thoughts and feelings. This is where people learn from their emotional experiences. Some scientists believe that humans are “hard wired” for empathy.

Perspectives: Empathy can be increased if people realize that there are many perspectives to each situation. Perspectives are not to be confused with “facts.” Example: The fact is that the temperature is 80 degrees. Perspective: I love 80 degree temperatures.

Empathy can lead us astray. This is the dangerous side of empathy. For example, judges who can relate to White Collar criminals may go easier on them, maybe because they share similar social backgrounds.

Every Major Negotiation Book Refers to Empathy.

This is true although they may use various terms rather than empathy such as,

-Putting yourself in their shoes.

-Putting your head on their shoulders.

-Concern about others and concern about yourself.

Communication Flow Through Dispute Resolution Stages

Every effective dispute resolution process has a logical communication flow that is most likely to lead to a resolution. Negotiation Stages serves as an example:

-Stage One: Planning

-Stage Two: Introduction

-Stage Three: Facts and Perspectives

-Stage Four: Identification of Issues.

-Stage Five: Generation and Selection of Options

-Stage Six: Agreement

Stage One: Planning.

Negotiation planning is so important that it is designated as Stage One; whereas, most folks might think of Stage One as Introduction.

Remember the old Abraham Lincoln saying: When I go to meet with a person, I spend 1/3 of my time thinking what I am going to say or do and 2/3 of my time, thinking of what they are going to say or do.

How does one accomplish this? Empathy. One needs to walk in the shoes of the other parties during planning to envision what they may say or do.

An effective negotiator then completes some sort of Negotiation Planner so one records the planning.

Stage Two: Introduction

Even in the stage, empathy comes to play. Maybe the other parties are feeling or saying,

I am pleased to be at the negotiation table.

I hate being at a negotiation.

Negotiation is too tedious, too, time consuming.

Put your head on their shoulders to discern why they are feeling or saying this. Don’t rush through the introduction since this stage is laying the foundation for the entire process.

Stage Three: Facts and Perspectives

It is productive to discern the facts. If they are facts, there should be general agreement.

-There are 18 chairs in this room.

-In this room, there are two paper charts.

-The business is located at 1003 Otis Street.

It is worth the time to spend time to agree on the facts, at least, generally.

Now, on to perspectives. Perspectives are essentially opinions or views. There is no need for agreement. Empathy becomes the main tool in this stage. Listen, summarize, ask questions and value each perspective.

A wise assumption is this: People do and say things which makes sense to them at the time.

To understand this, one must use empathy to put yourself in their position to try to understand why they are saying or doing these things. One is not seeking agreement on perspectives, one is seeking understanding. Once there is this clarification, the next stage.

Stage Four: Identification of Issues

Many negotiators do not think about this process as a stage, but how vital it is. Effective negotiators want to hone in on exactly what needs to be resolved at the table now. Many negotiators assume that they know. No. This needs to be clarified and posted on the White Board of Paper Chart.

So, let’s just say this issues are,

-Long term contract

-Short term contract

-Dispute resolution agreement.

There is agreement on these issues, but maybe one party declares another issue: Let’s agree to implement this contract in an open and transparent way.

An unempathetic response would be, Oh, that is assumed. No need to have that as a separate issue. We always implement contracts openly.

This type of response is not helpful. Instead using empathy, an effective negotiator might say, This could be an issue. What is behind your concern about listing openness as a separate issue.

The other party might say, I have been burned on similar contracts before. All looks good during the negotiation, but implementation becomes a problem.

Stage Five: Creation and Selection of Options

This is the time for all parties to throw out ideas. Maybe one party asserts, Let’s aim for a 20 year contract. An un-empathetic response: Wow, I have never considered more than 3 years. We have never had a 20 year contract.

An empathetic response: We usually have three year contracts. What are the reasons underlying your 20 year contract idea. The other party might say, We are investing heavily into this infrastructure which we expect to last 20+ years so we really need the ROI (return on investment).

This is the stage where lots of persuasion takes place. Some estimate that 90% of the time when folks believe that they are being persuasive, they are not. Why is this? Usually the reason is that the Persuader is basically persuading themselves.

A much better way is an empathetic approach. The Persuader needs to put themselves in the shoes of another. What is going to persuade them? How can the Persuader tailor or craft the idea, the option, so that it meets all of the concerns of the Persuadee.

Stage Six: Agreement.

Many parties want to rush through this stage. They are so relieved that they got this far. Sage advice says, Take the Time.

During this stage, one party might say, let’s relocate the site of our activities to Athens, Georgia. An unempathetic response: We have always operated out of Columbus, Georgia. We cannot afford that relocation and why is this coming up now at the very end of the negotiation. An empathetic response: This is an interesting idea. What is underlying this idea?


Empathy is a valuable characteristic of an effective negotiator. As shown by the above example, empathetic listening and responding can be used in every stage of the negotiation or conflict management process. Empathetic listening engenders “liking” and trust. Negotiators know that if the other parties at least like them, let alone trust them, the potential of persuasion is higher.


Please review the recommended books at the top under “blogs” with a drop down menu.

Clicking on each book will take you directly to the discounted Amazon site.

Roy J. Lewicki, David M. Saunders, Bruce Barry

Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education

The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2

Prudence Bowman Kestner and Larry Ray


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