On the occasion of the late Justice Ruth Bader Ginsburg’s birthday (she would be 88 today), it seems only fitting that we use her wonderful example as another one for negotiation. And, while we could focus on her judicial career, I think a particular lesson comes from her very successful litigation strategy as a lawyer for the ACLU in the 1970’s.
Many of us have written about the importance of role reversal in understanding the perspective of your negotiation counterpart. Whether this is done through the actual exercise of labeling chairs and moving to your counterpart’s view of the situation or at least walking through some general questions to push you to “see” the conflict from their point of view, we argue that this perspective will help in a variety of ways. First, you will better understand how to frame arguments in a way that is persuasive to your counterpart (rather than to you.) Second, you will utilize criteria that is more persuasive to them. Third, you might come up with options that better suit their needs (and Carrie Menkel-Meadow, among others, has written about the usefulness of “flipping,” a related tool for creativity.) And so forth. Reversal, or the ability to persuade in different ways, is also explained by Donna Shestowsky in her work on the central versus peripheral route to persuasion. In the central route, parties must be motivated to think deeply about the issue. For the peripheral route of persuasion, parties might rely more their previous assumptions and biases and fail to be persuaded by what seems to be clear, strong arguments. Two particular pieces of advice that Prof. Shestowsky gives in this is to (a) focus on the team members most likely to use central thinking and (b) reduce distractions to encourage deeper thinking.
So, how does this fit in with RBG’s litigation strategy? As she herself has noted, her most successful cases were when she was able to argue on behalf of men who themselves were disadvantaged by gender stereotypes. She understood that she was really negotiating with the Supreme Court and needed to frame her arguments in a way that would utilize criteria persuasive to them. So, whether it was the drunken frat boys at Oklahoma State who argued that they were discriminated against since 18-year-old women could drink “weak” beer but men could not until age 21 (Craig v. Boren, 1976); or the gentleman who was taking care of his elderly mother but denied a caregiver tax deduction (Moritz v. IRS, 1970); or the male defendant who argued that exempting women from the jury denied him his 14th Amendment rights (Duren v. Missouri, 1979); or, in what she said was her favorite case, the widower who claimed his wife’s survivor benefits to care for his infant, motherless son (Weinberger v. Wiesenfeld, (1975), she was able to present the all-male Supreme Court with a series of cases in which they could see themselves as a plaintiff rather than stretching to understand a woman’s perspective. Observers (and colleagues at the ACLU) argued that her incremental strategy was not particularly feminist. Yet RBG (albeit without having read Prof. Shestowsky!) already understood that hitting discrimination head on (the central route of persuasion) was more challenging and more likely to fail given the lack of motivation to think deeply. Reducing distractions, as it were, to focus on the men that were harmed led to long term and secure gains in the jurisprudence of gender equity.
One of RBG’s sayings particularly applies to negotiation–“you can disagree without being disagreeable.” And I also think that we in dispute resolution should happily use her litigation strategy as well for a great example of persuasion. Yet another reason to recognize exactly how brilliant she was.