I’ve been in this industry for a long time—more than 40 years, if you can believe it. And if I had a dollar for every time I’ve heard someone call negotiation “more of an art than a science,” I’d have retired to a private island years ago.
We love to talk about the "art" of it, right? We praise the charismatic lawyer with the perfect courtroom presence, the adjuster who can “read the room,” the quick-witted negotiator who can control a conversation. We think of it as a performance, a dance of wits and charm.
But I’m here to tell you something that might sting a little: that’s mostly nonsense.
At least, that’s what the science says. High-stakes negotiation, especially in the world of insurance claims and litigation, isn’t a performance problem. It’s a decision quality problem. The winner isn’t the person who speaks most persuasively in the moment. The winner is the one who makes it easiest for the other side to understand, remember, and justify their position.
And right now, we’re getting beaten at that game.
So, Why is This a Five-Alarm Fire for Claims Leaders?
Let's just be brutally honest for a second. Our industry settles somewhere between 98 and 99 percent of all claims. We are, without a doubt, running the largest negotiation network on the planet. Every single day, tens of thousands of claims pros and defense attorneys are working toward one goal: negotiating fair and reasonable outcomes.
How we handle those negotiations has a bigger impact on our company’s bottom line than almost anything else we do. It’s that simple.
And we have to start doing it differently. Why the urgency? Because the plaintiff’s bar has found a force multiplier, and it’s called AI. They are using it to generate detailed, evidence-based, written demand packages at a massive scale.
Meanwhile, what are we often doing? We’re still picking up the phone. We hesitate to put our arguments in writing. We prefer to throw out a number verbally rather than build a written case to justify it.
Here’s the hard truth: our preference for talking is a huge weakness against their preference for writing. And the science of how the human brain works proves it.
Let’s Talk About the Brain: The Real Battleground of Negotiation
Think about it. Verbal and written communication are designed for completely different things. They optimize for different outcomes in our brains.
Decades of research in cognitive psychology and communication theory all point to the same conclusion: when you need someone to make an accurate judgment, be truly persuaded, and be held accountable for their decision, a purely verbal conversation is a terrible tool for the job.
So when one side (the plaintiff’s bar) systematically uses writing and the other side (us) primarily relies on talking, the advantage isn’t just subtle. It’s structural. It’s a landslide.
Let’s break down why.
Don't Get Me Wrong, Talking Still Matters
Now, before you think I’m suggesting we all become pen pals and never speak again, let me be clear. Verbal communication is incredibly powerful, but only for specific jobs.
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Building Rapport and Trust: There’s no substitute for a real conversation to convey warmth, emotion, and sincerity. When you’re starting a relationship with opposing counsel or when trust is low, a phone call is critical. Trust itself doesn’t guarantee a good settlement, but a lack of it can stall everything.
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Putting Out Fires: Is the other side angry? Are emotions running high? A live conversation is the best way to manage tone, adjust your pacing, and de-escalate a tense situation. Sometimes, just letting someone vent is the price of admission to a logical discussion.
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Closing the Deal: Late in the game, when you’re testing out final proposals and trying to get everyone on the same page, talking is fantastic for reaching a shared understanding quickly.
So yes, I’m a huge fan of talking. But it’s all about timing and purpose. The goal isn’t to eliminate verbal negotiation; it’s to sequence it correctly.
In fact, the science points to a perfect, three-step dance: Write, then Talk, then Write again.
- Write First: To lay out the facts, establish your rationale, and set the anchors.
- Talk Second: To manage emotions, build rapport, and clarify understanding.
- Write Again: To lock in the agreement and prevent memory from playing tricks on anyone.
Where Writing Absolutely Crushes Talking
Let’s get back to what really drives a successful negotiation: precision, memory, evaluating evidence, and making a persuasive argument that actually sticks.
It turns out that talking is surprisingly bad at all of those things. Writing, on the other hand, is a superstar. Here’s why.
It Gives Their Brain a Break (So They Can See You’re Right)
Our working memory is shockingly limited. We can only juggle a few pieces of new information at once. A verbal negotiation forces the other person to listen, interpret numbers, remember your points, and formulate a response—all at the same time. It’s like trying to pat your head, rub your stomach, and solve a math problem simultaneously. It’s a recipe for cognitive overload.
A written document does the heavy lifting for them. It puts all the information on the page, freeing up their mental energy to actually evaluate your points instead of just trying to remember them. That’s exactly what you want.
It Makes Your Argument Stick (and Easy to Understand)
Have you ever tried to explain a complex idea, only to have the other person miss the point? With a written document, they can control the pace. They can reread a tricky passage. They can see how the facts are organized. Research shows this dramatically improves comprehension and reduces errors. You want them to truly understand your position, right? Writing is the only way to guarantee it.
It Beats the "Forgetting Curve"
Back in the 1880s, a psychologist named Hermann Ebbinghaus discovered something terrifying: we forget about 50% of new information within an hour, and up to 90% within a few days. It's called the "Forgetting Curve." Worse, when we try to recall things, our brains often fill in the gaps with stuff we just plain made up.
Think about that. You can make the most brilliant verbal argument of your career, and by tomorrow, the other attorney will have forgotten most of it—or worse, misremembered it in a way that hurts your case. A written document is the antidote. It’s a stable, persistent record they can always refer back to.
It Leaves No Room for Misunderstanding
In conversation, we imply things. We hint. We rely on unspoken context. That’s fine for casual chats, but in a negotiation, it’s a disaster waiting to happen. Writing forces you to be explicit. What are the facts? What is our position? Why is our valuation what it is? This clarity prevents misunderstandings that can blow up a deal later.
It Creates Real Accountability
We all know this intuitively: when you know you’ll have to justify your decision, you think more carefully. A well-crafted written argument from you triggers this accountability in the plaintiff’s counsel. It forces them to move past their "gut feeling" about the case and actually grapple with your evidence. They are accountable to their client and their partners, and your document becomes something they have to address logically.
It Sets an Anchor They Can’t Ignore
This might be the biggest advantage of all. In negotiation psychology, "anchoring" is one of the most powerful forces there is. A number, once stated, powerfully influences the rest of the conversation. A verbal anchor is fleeting. A written anchor is permanent. It’s there on the page, in every email, in every discussion. It fixes the starting point of the negotiation in a way a spoken number never can.
Your Game Plan for the Future
Let’s bring this all home. When one side negotiates with persistent, detailed, written arguments and the other side replies with fleeting, poorly documented phone calls, it’s not a fair fight.
The real danger of the plaintiff’s bar adopting AI isn’t the AI itself. It’s that the technology allows them to scale written persuasion. They can now create powerful, evidence-based arguments for every single case, big or small, with terrifying efficiency.
If we keep responding with the same old "art of the deal" verbal tactics, we’re going to get steamrolled.
To compete, we have to fight fire with fire. We must invest in our ability to respond in kind—whether that means more internal training, paying counsel to draft detailed responses, or adopting our own defense-focused technologies. We have to build a negotiation process that respects the science of how people actually make decisions.
So, as you look at your team’s work in the coming years, ask yourself this one simple question for every single claim you settle:
“What did we provide to opposing counsel that they could process, retain, evaluate, remember, and justify?”
If you don’t have a good, concrete answer to that question—if all you can point to is a series of phone calls—you probably left money on the table. It’s time we stopped thinking like artists and started thinking like scientists. Our bottom line depends on it.
