Others, though, are less certain. “I feel that the defendant is guilty on all three accusations technically, but I guess I feel that we should also take into consideration the fact that he does have a reading disability,” says a public schoolteacher named Lorraine. Another juror, Henry, is also unsure. “Technically, the man is guilty, guilty as sin,” he says. “But I want to acquit Leroy because I don’t think he was fully aware of the rules.”

  After everyone in the room speaks, it appears there are three people certain they want to convict Reed, two who are strongly leaning toward acquittal, and seven on the fence. “We have a very philosophical argument on our hands,” says one of the undecided, a psychologist named Barbara. “Are we obligated, as a jury, to follow the letter of the law and find him guilty? Or are we obligated, as a jury, to use our special level of conscience?”

  If, at this point, an educated observer were asked to guess how this would turn out, the answer would be easy: Leroy Reed is going to prison. Numerous studies have found that juries, regardless of initial uncertainties, usually eventually vote to convict, particularly if the defendant has a criminal record.

  However, there is something different about this jury. It’s imperceptible at first, but it slowly becomes apparent when a juror in his midthirties, a man named John Boly, starts talking. Boly seems to understand that all the jurors are involved in a negotiation with one another. He also recognizes that the first step in this negotiation is figuring out what everyone wants from this conversation.

  “I’m really not at all sure what I think or what I feel on this case,” Boly tells the others when it’s his turn to speak. “There’s no question but that this man is a felon and there’s no question but that he purchased a firearm.” His tone is a bit formal. “This guy’s reading magazines and living in a fantasy world,” Boly says. “I’m not sure…” he starts. “I want to listen to other people and I want to talk about and figure this out together as we go along.”

  The other jurors seem a bit mystified by Boly. Some of them are dressed in jeans while he is in a suit. Some have indicated they are retired, or work in factories or are stay-at-home parents. Boly is a professor of contemporary literature at Marquette University, where his specialty is Jacques Derrida. As one juror later told me, “When he started going on about Kafka and trials at one point, I was like, what are you talking about, man? What planet are you from?”

  However, Boly is also different in another, less obvious way: He’s a supercommunicator. He knows he must figure out what each juror wants from this discussion, what they need, and he knows that requires, as a first step, asking lots of questions. So he starts posing them as the conversation moves around the room: What do you think of handguns? What did you think when Leroy got flummoxed? Do you own a gun? Can we talk about what “possession” means? What is justice?

  To the other jurors, these questions seem innocent, almost like casual asides. But Boly is listening closely to how people answer, cataloging each juror in his mind, trying to figure out what each person wants to discuss. Some want to talk about morality and fairness (“I don’t care what the law says. Has justice been done?”) or autonomy (“I am not a computer…. I want to sit here and talk about it and think about it and not just say, right off the bat, he’s convicted on these three counts, he’s therefore guilty”) or are simply bored (“We can argue about semantics and we could do that forever”).

  As Boly listens, he keeps a list in his head of what each person is seeking: Henry wants guidance. Barbara wants compassion. Karl wants to go by the book. He is engaging in the first part of the What’s This Really About? conversation: Figuring out what everyone wants.

  But there’s also a second part to What’s This Really About?: Determining how we will talk to one another and cooperate in making decisions. There are lots of decisions that occur during every conversation, ranging from the unimportant (Will we interrupt each other?) to the crucial (“Should we send this man to jail?”). So, amid our negotiation, we must also figure out how we will make choices together.

  A NEGOTIATOR’S GOAL IS EXPANDING THE PIE

  Our understanding of this second part of the What’s This Really About? discussion—how will we make choices together?—has been transformed in the past forty years.

  In 1979, a now-famous group of professors—Roger Fisher, William Ury, and Bruce Patton—founded the Harvard Negotiation Project. Their goal was to “improve the theory and practice of negotiation and conflict management,” which, up to that point, had received relatively scant scholarly attention. Two years later, they published a book based on their research, Getting to Yes, that turned popular understanding of negotiations upside down.

  Until then, many people had assumed that negotiations were zero-sum games: Any time I gained something at the bargaining table, you lost. “A generation ago,” reads Getting to Yes, “in contemplating a negotiation, the common question in people’s minds was, ‘Who is going to win and who is going to lose?’ ” But Fisher, a Harvard law professor, thought that approach was all wrong. As a young man, he had helped implement the Marshall Plan in Europe and, later, aided in finding ways to end the Vietnam War. He had worked on the Camp David Accords in 1978 and in securing the release of fifty-two American hostages from Iran in 1981.

  In those and other negotiations, Fisher saw something different at work: The best negotiators didn’t battle over who should get the biggest slice of pie. Rather, they focused on making the pie itself larger, finding win-win solutions where everyone walked away happier than before. The concept that both sides could “win” in a negotiation, Fisher and his colleagues wrote, might seem impossible, but “it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a ‘win-win’ solution cannot be found, a wise agreement can still often be reached that is better for both sides.”

  Since Getting to Yes was first published, hundreds of studies have found ample evidence to support this idea. Elite diplomats have explained that their goal at a bargaining table isn’t seizing victory, but rather convincing the other side to become collaborators in uncovering new solutions that no one thought of before. Negotiation, among its top practitioners, isn’t a battle. It’s an act of creativity.

  This approach has become known as interest-based bargaining, and its first step looks a lot like what Boly did in the jury room or what Dr. Ehdaie did with his patients at Sloan Kettering: Ask open-ended questions and listen closely. Get people talking about how they see the world and what they value most. Even if you don’t learn, right away, what others are seeking—they might not know themselves—you’ll at least inspire them to listen back. “If you want the other side to appreciate your interests,” Fisher wrote, “begin by demonstrating that you appreciate theirs.”

  Listening, though, is just the first step. The next task is addressing the second question inherent in a What’s This Really About? conversation: How will we make decisions together? What are the rules for this dialogue?

  Frequently, the best way to figure out those rules is by testing out various conversational approaches, and seeing how others react. For instance, negotiators often conduct experiments—first I’ll interrupt you, and then I’ll be polite, and then I’ll bring up a new topic or make an unexpected concession, and watch what you do—until everyone decides, together, which norms are accepted, and how this conversation should unfold. These experiments can take the form of proposals or solutions, or unanticipated suggestions or new topics that are suddenly introduced. In each case, the goal is the same: To see if this probe reveals a path forward. “Great negotiators are artists,” said Michele Gelfand, a professor at Stanford’s business school. “They take conversations in unexpected directions.”

  Among the surest methods for sparking this kind of experimentation is introducing new themes and questions to a discussion, adding items to the table until the conversation has changed enough that new possibilities are revealed. “If you’re negotiating over salaries, for instance, and you’re stuck,” Gelfand said, “then drag something new in: ‘We’ve been focused on wages, but what if, instead of increasing paychecks, we give everyone more sick days? What if we let them work from home?’ ”

  “The challenge is not to eliminate conflict,” Fisher wrote in Getting to Yes, “but to transform it.” All of us conduct these kinds of experiments in our everyday conversations, frequently without realizing it. When we make a joke, or ask a probing question, or suddenly get serious or silly, we are, in a sense, conducting a test to see if our companions will accept our invitation, if they’ll play along.

  Like interest-based bargaining, the What’s This Really About? conversation succeeds by transforming a conversation from a tussle over where the dialogue is going into a collaboration, a group experiment, where the aim is figuring out what everyone is seeking and the goals and values we all share. To an outside observer, it might seem as if we’re simply discussing who will pick up the kids and the groceries. But we—the people participating in this quiet negotiation—are aware of subtexts and undercurrents, the experiments under way. We’re asking open-ended questions (“Am I doing enough to help?”) and adding items to the table (“What if I do grocery pickup and wash the dishes, and you get the kids and fold the laundry?”) until the conversation has changed enough to make clear what everyone actually wants and the rules we’ve all agreed on: “I want to respect your time, and work is important, so what if I get takeout and ask Uncle Arvind to get the kids, so we can both come home late?”

  The What’s This Really About? conversation is a negotiation—only the goal is not to win, but to help everyone agree on the topics we’ll discuss, and how we’ll make decisions together.

  * * *

  —

  Back in the jury room, Boly has done the first part of What’s This Really About?: He has asked questions and sought to understand what each of his fellow jurors want.

  Some of what Boly hears indicates a guilty verdict is becoming increasingly likely. The foreperson says that he intends to convict, and then another juror, who was previously on the fence, agrees with him. Karl, the fireman, jumps in with support. Leroy Reed didn’t hurt anyone this time, he says, but what about next time? “That’s why the law is there, why felons cannot own guns,” Karl says. Others chime their assent: “What if Mr. Reed would’ve bought a gun and killed some innocent bystander somewhere along the line?”

  This, studies of courtroom dynamics indicate, is when a jury’s verdict often starts to gel. This is the moment—when one or two jurors take a strong stance, and others, because of indecisiveness or pliability, climb aboard the bandwagon—that a guilty verdict becomes inevitable.

  But Barbara, the school psychologist, isn’t quite ready. “I wonder if we could find some room,” she says, “that perhaps he didn’t, in the full sense of the word, know he was a felon, and didn’t, in the full sense of the word, know that he possessed a firearm.”

  “The only thing that bothers me,” the foreperson shoots back, is that the judge said “something to the effect that ignorance is no excuse.” The conversation is getting heated. Voices are rising.

  It’s at this point that Boly speaks again, but in a different way from before. He’s done asking questions. It’s time for the second part of a What’s This Really About? conversation: Figuring out how everyone will make choices together.

  He begins by introducing something new to the conversation and imagining what it’s like to be Leroy Reed.

  “One of the things I noticed,” Boly says, interrupting the growing tension with a light tone, is something about Reed’s gun. If you look closely at it, he says, it “looks like a toy.” This comment comes out of left field. The others look at Boly with confusion. “Now, I’d be willing to bet, if I bought a gun,” Boly continues, “and I got a holster with it, the first thing I’d wanna do is stick it here,” he gestures at his belt, “and go around Milwaukee and, you know, every time I walk past that bridge or under that underpass, or something like that, I don’t have to worry about what’s gonna step out from behind a lamppost. I’m ten feet tall! I’m packing a rod!”

  His fellow jurors are befuddled. What’s going on? What is “packing a rod”? The only thing everyone knows for certain is that Boly should never be given a weapon.

  But Boly isn’t really talking about guns. He’s talking about something bigger. He’s conducting an experiment.

  “Now,” Boly continues, “the fact that, you know, he handles it almost like it was this sacramental thing, and he locks it up and he puts it in his closet and he shuts the door,” that’s an important detail, he tells them. “He doesn’t put it in the holster or in his pocket or wear it on his hip or anything like that.”

  One of the other jurors—someone who, until now, seemed willing to ride the momentum to a guilty verdict—picks up the thread. “Right,” he says, “he didn’t take it out of the box.”

  Another juror jumps in: “We can’t even say that he knew how to use a gun.”

  This is pure conjecture. No evidence was offered during the trial suggesting that Leroy Reed is ignorant of how to use a firearm. But the jurors are now building a story in their minds: Maybe he doesn’t know how to load a gun. Maybe he doesn’t even realize that a gun needs bullets. Within a few minutes, a whole new version of Leroy Reed has materialized: Someone who, even if he possessed a gun, might not have understood he possessed it. In which case the judge’s third question—“Did he know he had acquired a gun?”—has taken on a new dimension.

  Boly has shifted the conversation. He has reframed this discussion by experimenting with an idea, by inviting the jurors to start imagining new possibilities, dreaming up different ways to analyze the questions at hand. They are negotiating over how they’ll come to a decision together.

  The momentum toward a guilty verdict has slowed, but they are still a long way from a unanimous choice.

  HOW PERSUASION HAPPENS

  What’s This Really About? discussions tend to fall into one of two buckets. There are some conversations where people signal they are in a practical mindset: They want to solve a problem or think through an idea. They want to decide how much to bid for that house—and what does that mean about our life together?—or who to hire for the job they’ve been advertising—and do we actually need another employee? These discussions call for analysis and clearheaded reasoning. Psychologists refer to this kind of thinking as the logic of costs and benefits. When people embrace logical reasoning and practical calculations—when they agree that rational decision making is the most persuasive method for making a choice together—they’re agreeing to contrast potential costs with hoped-for benefits.

  But in some other What’s This Really About? conversations, the aim is different. Sometimes people want to make choices together that might not align with logic and reason. They want to explore topics beyond cold rationality. They want to apply their compassion, talk about values, discuss matters of right and wrong in making joint decisions. They want to draw on their experiences, even if they don’t completely overlap with the situation at hand.

  In these kinds of conversations, facts are less persuasive. If someone says something about their feelings, their partner doesn’t start debating with them. Instead, they sympathize, laugh, share a sense of outrage or pride. In general, in these kinds of discussions, we make decisions not by analyzing costs and benefits, but instead by looking to our past experiences and asking ourselves, “What does someone like me usually do in a situation like this?” We are applying what psychologists call the logic of similarities. This kind of logic is important because, without it, we wouldn’t feel much compassion when someone describes sadness or disappointment, or know how to defuse a tense situation, or tell if someone is serious or kidding. This logic tells us when to empathize.

  These two kinds of logic exist, side by side, within our brains.[*] But they are often contradictory or mutually exclusive. So when we’re negotiating over how a conversation will unfold—how we’ll make choices together—one question we’re asking is: What kind of logic does everyone find persuasive?

  For Dr. Ehdaie, understanding the difference between the practical logic of costs and benefits and the empathetic logic of similarities was critical. Some patients came in with analytical questions and asked for data. They were clearly in a practical, analytical mindset—and so he knew they would be persuaded through evidence: studies and data.

  But other patients told Ehdaie stories about their pasts and their anxieties. They talked about their values and beliefs. These patients were in an empathetic mindset. So Ehdaie knew he needed to persuade them through compassion and stories. He would tell them that he—a surgeon who loved surgery—would advise his own father to avoid this kind of operation. He told them what other patients had done, because in an empathetic mindset we are influenced by narratives. “Stories bypass the brain’s instinct to look for reasons to be suspicious,” said Emily Falk, a professor at the University of Pennsylvania. We get drawn into stories because they feel right.

  There’s a lesson here: The first step of a quiet negotiation is figuring out what people want from a conversation. The second step is determining how we’re going to make choices together—and that means deciding if this is a rational conversation or an empathetic one. Are we going to make decisions through analysis and reason, or through empathy and narratives?

  It’s easy to get this wrong. In fact, I have gotten it wrong many times. When one of my cousins started telling me about wild conspiracy theories (“Mattress stores are money-laundering fronts!”), I tried to convince him he was mistaken by using data and facts (“Actually, most of them are publicly traded, so you can see their finances online”). Then I was surprised when he said that I had been brainwashed. He was using a logic that drew on stories he had heard about elites taking advantage of other people, a logic of similarities that said we ought to be suspicious about corporations because they have lied before. My reasonable arguments, my logic of costs and benefits, wasn’t persuasive to him in the slightest.