I can’t resist commenting on Andrea’s lighthearted post showing a sign at a Starbuck’s with President John F. Kennedy’s famous statement, “Let us never negotiate out of fear.  But let us never fear to negotiate!”

This reminds me of President Franklin Delano Roosevelt’s statement, “The only thing we have to fear is fear itself.”

I appreciate the intent of both statements, which was to inspire confidence and resist fear.  JFK’s statement is particularly relevant for our community, suggesting that people and nations should be open to negotiation, which I generally agree with.

Slogans vs. Reality

While both statements are catchy slogans, they are literally incredible, no disrespect.

In real life, negotiators often negotiate precisely because of their fears.  Fearless negotiators generally are either foolish, pathological, or both.

Fortunately, in JFK’s conflicts with the Soviet Union, presumably he was afraid of initiating a nuclear war.  I’m glad he was afraid or else we might all be dead (or, if you are under 55, you might never have been born).

In litigation, parties often negotiate because of their fear of the worst alternative to a negotiated agreement (WATNA).  Empirical research suggests that in most cases, the trial verdict would be worse than one party’s final settlement offer, so less fear of accommodation in negotiation would have been prudent for those parties.

Sometimes, however, it does make sense to fear to negotiate.  For example, negotiation may not make sense if the most likely alternative to a negotiated agreement (MLATNA) is much more favorable than the expected negotiated outcome based on a confident analysis of the counterparts and circumstances.  If the counterparts are likely to use “dirty tricks” in negotiation, one might reasonably fear that they will be nasty and try to take unfair advantage.

Even so, sometimes it does make sense to negotiate with the “devil,”as Robert Mnookin recently argued.  But you would be crazy not to be at least a little afraid when dealing with the devil.

What’s to be Afraid of?

Regarding FDR’s statement, there are lots of things to fear in addition to fear.  These include malicious mass violence, large-scale disasters, economic collapse, poverty, disease, fear-and-hate-mongering, and a long list of other things.

Fear is a normal emotion that often is functional.  A basic type of fear leads to the fight-or-flight reaction to physical threats, which is necessary for survival.

People normally are afraid of things such as social interaction, criticism, rejection, conflict, and loss.

My article, Escaping Lawyers’ Prison of Fear, catalogs a huge but non-exhaustive inventory of fears specific to lawyers.

Some of these fears involve legal practice generally but many relate specifically to negotiation.

Dealing with Fear

Some people don’t handle fear very well. But people’s fears can lead them to improve their performance, sometimes prompting them to do extraordinary things.

So don’t always knock fear.

Instead, it makes more sense to understand fear and use techniques described in the article to take advantage of it (or at least to manage it constructively).

John Lande is the Isidor Loeb Professor Emeritus and former director of the LLM Program in Dispute Resolution, at the University of Missouri, School of Law. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He is also an avid writer and contributor to Indisputably.org