Q. Sometimes the only way I can influence someone in negotiations is by feigning tears. Is this a legitimate negotiating tool?
A. Negotiation, pitting one person against another, can be highly emotional and often upsetting. Sometimes it can drive a person to tears, or fury.
Negotiation is also a process in which a successful outcome depends on convincing the other side of our tenacity; it's easy to say "I can't possibly accept that offer," but it's not so easy to persuade the other side you really mean it. So there is a natural tendency to bluff, and to seek ways to give credence to our claims. One way of backing up our claims is through emotions: an angry outburst or a teary interlude may make the other side think: "Wow, s/he really means it, it's coming from inside." Fake emotion, like all bluffing techniques, is in need of ethical evaluation.
One such technique, described in the mishna, is to swear. Anyone can assert that an offer is no good. But certainly only someone completely sincere would risk a false oath, one of the most serious transgressions in the Torah? On this the mishna tells us:
What is [an example of] a goading oath [which is void]? When a person is selling an object and says, "I take an oath that I will not take less than four dinars", and the other says, "I take an oath that I will not pay more than two dinars", both are interested in [a price of] three dinars. (1)
In this bold statement, the Sages of the mishna are basically lowering the stakes. If this oath were considered binding, then the merchants would be inclined to believe it. If the merchants give it credence, then there is an incentive to take a false oath, a very serious transgression. The best solution is to nullify the oath; in this way, there is no incentive to use it.
But tears and anger are not the same as an oath. Everyone knows that these can be faked, but they also know that not everyone is capable of faking them, and even those who are can't use this trick at every opportunity or else it will lose all its impact. So these definitely can have an influence on a normal sensitive person in an argument or negotiation.
We can learn from one Talmudic passage that feigning emotion can sometimes be legitimate. An ancient law implies that it may sometimes be sanctioned to ruin something in anger; the rabbis expressed wonder:
Is it not taught . . . one who tears his clothes in anger, or breaks utensils in anger, or scatters his coins in anger, should be in your eyes like an idol-worshipper? . . . It can be needed to startle family members. Such as Rav Yehuda who pulled out threads from his garment, or Rav Atta bar Yaakov who broke some fragile utensils, Rav Sheshet threw some sauce at his maid, and Rebbe Abba broke a lid. (2)
Of course this is not the normal proper way to relate to family members or servants! The mishna tells us, "Say three things Sabbath eve as dusk approaches: Did you take tithes? Did you arrange the eiruv [allowing carrying or traveling]? Light the candles now." On this the Talmud specifies: "These must be said gently, so that they will be accepted". (3) This is an obligatory ruling in Jewish law.
Likewise, Maimonides write that if someone has a servant: "Don't demean him with words or gestures; he is there for service, not for shame. And don't often shout or be angry; rather, speak to him gently and hear any complaints he has." (4)
However, on rare occasions there may be vital tasks that won't be done unless people get shaken up a bit. Note that even on these occasions our sages did not assault or even threaten their family members or servants; they merely engaged in demonstrative acts to feign anger and demonstrate that their demands were serious.
Likewise, the proper way to engage in negotiation and discussion is in a respectful way, raising pertinent considerations and pointing out legitimate potential benefits and dangers to both sides. Certainly it is permissible to be a tough negotiator, with all the advantages and disadvantages of this style. However, if the only way to get to an agreement that will be to the advantage of both sides is an emotional outburst, it seems to me that the precedent of the above passage suggests that it should be acceptable.
One caveat is in order: Emotions should never be used as a weapon, to extract a concession – along the lines of "If you don't give in I'll cry or scream." This is no more than extortion. Maimonides writes that when a concession is made out of fear of unpleasantness, this is considered a kind of duress. (5)
SOURCES: (1) Mishna Nedarim 3:1 (2) Babylonian Talmud Shabbat 105b (3) Shabbat 34a (4) Maimonides' Code, laws of slaves 9:8 (5) Maimonides laws of repentance 4:4.
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