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Jennifer Kapp (partner at Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, LLP) (guest contributor)
Every litigator and claims professional knows how to evaluate a case. Far fewer know how to evaluate the people negotiating it.
From the moment litigation begins, attorneys and claims professionals are trained to analyze facts. We evaluate liability, assess damages, review medical records, research jury verdicts, consider venue, and identify the strengths and weaknesses of witnesses. Technology has made that analysis more efficient than ever before, giving us access to better data and more sophisticated tools to evaluate risk.
Yet despite having access to the same evidence, experienced attorneys routinely reach dramatically different settlement outcomes. Cases that appear ready to resolve reach an impasse. Reasonable offers are rejected. Litigation continues long after the economics suggest settlement would benefit everyone involved.
The explanation often is not found in the facts themselves. It’s found in the people interpreting them.
Negotiation has never been simply an exchange of numbers. It is an exercise in understanding human behavior. Emotional intelligence remains one of the most overlooked skills in successful litigation and claims negotiation. While legal analysis tells us what a case may be worth, emotional intelligence often explains why negotiations succeed and, just as importantly, why they fail.
One of the greatest misconceptions in litigation is that stronger evidence naturally leads to better negotiation outcomes. It’s often assumed that presenting stronger legal authority, more persuasive testimony, or more compelling facts will eventually cause the other side to reach the same conclusion.
Experience tells us otherwise.
People rarely make decisions based solely on facts. Every negotiation is influenced by perception, past experiences, priorities, and risk tolerance. Two experienced attorneys can review the same deposition transcripts, expert reports, and medical records and arrive at very different settlement evaluations – not because one is wrong, but because each views the case through a different lens.
That reality changes the way one should approach negotiation. Winning the argument is rarely enough. Understanding the person on the other side of the table is often what moves the case forward.
When negotiating, positions rarely tell the whole story.
The more important question is: Why?
Before evaluating the other side’s motivations, effective negotiators first need to understand their own client’s objectives. What does winning actually look like?
Sometimes winning means more than obtaining the best financial result. It may mean protecting business relationships, preserving confidentiality, avoiding precedent, achieving closure, or ending years of expensive litigation. Without understanding what the client truly wants to accomplish, it is difficult to negotiate effectively on their behalf.
The same analysis applies to the other side. A plaintiff may value certainty, a business may prioritize confidentiality, and an attorney may need to demonstrate advocacy before recommending compromise. Recognizing those motivations helps move the negotiation beyond the number being exchanged.
Those motivations are rarely reflected in the pleadings or discovery responses. Yet they often determine whether meaningful negotiations occur.
Understanding someone’s motivation does not mean agreeing with them. It means recognizing what is actually driving the negotiation instead of focusing only on the number being exchanged.
These dynamics are often most visible during mediation, where decision makers must balance legal risk, business objectives, emotions, and expectations in real time.
Emotional intelligence (EI) is sometimes described as a soft skill. In litigation and claims handling, it’s better understood as a strategic one. It shapes how attorneys and claims professionals prepare clients for negotiation and mediation, communicate difficult developments, and respond when negotiations become challenging. It also builds credibility with opposing counsel, mediators, clients, carriers, and business partners.
Just as importantly, emotional intelligence requires us to recognize our own reactions.
Attorneys and claims professionals naturally develop opinions about a case. Over time, people become invested in legal arguments, evaluations, and strategies that have been pursued throughout litigation. It’s human nature to seek confirmation that prior analyses and evaluations were correct.
There is nothing wrong with confidence.
But once we become emotionally invested in proving ourselves right, it becomes much harder to objectively evaluate new information or recognize opportunities to resolve a case. The best negotiators continually evaluate not only the strengths and weaknesses of the litigation, but also whether their own emotions are influencing their judgment.
Most adjuster training emphasizes technical skills: coverage analysis, reserve setting, and litigation strategy. These are essential, but they often overlook the human element. Claimants are often facing circumstances that are emotionally significant to them, and those emotions can influence how claims are evaluated and negotiated by all parties involved. At the same time, adjusters operate under constant performance pressures, while remote negotiations can make it more difficult to interpret interpersonal cues. Social media, attorney advertising, and rising claimant expectations have only amplified these challenges. When emotional intelligence is lacking, even strong technical claim handling can result in stalled negotiations, unnecessary litigation, or extra contractual exposure that affects the entire tower.
Whether dealing with an emotionally charged claimant, a difficult mediation, or a plaintiff attorney taking an aggressive position, claims professionals are often negotiating with people whose decisions are influenced by factors that cannot be found in the claim file. Understanding those dynamics can be just as important as understanding liability, damages, or coverage.
The research supporting emotional intelligence in negotiation is compelling, but it should be framed carefully. Harvard’s Program on Negotiation identifies emotional perception, emotional facilitation, emotional understanding, and emotional regulation as key components of emotional intelligence in negotiation, emphasizing that the ability to recognize and manage emotions can materially affect how negotiations unfold.1
A separate Swiss employment negotiation study found that general mental ability was unrelated to negotiation outcomes, while higher emotion recognition ability and emotional understanding were associated with higher dyadic gains, higher gains for counterparts, and stronger perceptions of cooperativeness and likability.2 Taken together, these findings support the practical point that successful negotiation depends on more than facts, valuation, and strategy alone. It also requires the ability to read emotional cues, understand what may be driving the other side, and manage the interpersonal dynamics that influence whether negotiations progress or stall. This research supports a practical application: claims professionals who can de‑escalate tension, build trust, and maintain productive dialogue may be better positioned to resolve disputes efficiently and preserve stronger working relationships.
If EI can influence negotiation outcomes, the next question is how claims professionals can strengthen these skills in practice. While traditional claims training often focuses on coverage analysis, liability assessment, damages evaluation, and negotiation tactics, EI develops through deliberate attention to communication and interpersonal dynamics. Practical approaches may include seeking feedback on negotiation style, participating in negotiation exercises that emphasize human behavior and relationship management, and conducting post negotiation reviews that evaluate not only strategy and valuation, but also the emotional factors that influenced the discussion.
These skills have practical applications throughout the claims process, from recognizing when a claimant primarily wants to be heard, to managing high pressure settlement discussions, to navigating complex mediations involving multiple parties and competing interests. Over time, greater awareness of emotional cues, stronger listening skills, and improved self-regulation can help claims professionals navigate difficult conversations, build credibility, and maintain productive working relationships throughout the claims process.
Technology is changing the practice of law in remarkable ways. We now have tools that can summarize depositions, organize medical records, identify legal authority, and help us analyze litigation risk more efficiently than ever before.
Those tools are valuable. They make us better prepared and more efficient advocates. But technology cannot build trust with a client who is struggling to make a difficult decision.
AI cannot recognize when opposing counsel's resistance has less to do with the merits of the case than with the difficult conversation they still need to have with their client. It cannot appreciate the value of credibility and trust that develops between attorneys and claim professionals who have negotiated hundreds of cases over the course of their careers. Those moments require judgment, communication, and experience. They require understanding people.
Effective negotiation will always begin with strong legal and technical analysis. Attorneys must understand liability, damages, evidence, and litigation risk. Claims professionals must evaluate coverage, reserves, exposure and settlement strategy. Those fundamentals are essential. But successful negotiations are ultimately driven by people. The facts explain the dispute, but understanding people often explains the negotiation.
As technology continues to reshape claims handling and litigation, the ability to understand motivations, build trust, communicate effectively, and exercise sound judgment may become one of the few advantages that cannot be automated. Emotional intelligence influences every stage of a claim, from initial handling through litigation, where understanding people is often just as important as understanding the file.
Jennifer Kapp is a partner at Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, LLP, where she represents employers, insurers, and businesses in complex litigation throughout Pennsylvania. She is known for her strategic, early-resolution approach to litigation and regularly speaks and writes on negotiation, claims strategy, and leadership. Jennifer is also a frequent co‑host of the Claims Never Sleep podcast. cmlawfirm.com
