Communication in Negotiation: How Hard Should You Push?

When we desperately want a desired outcome that only one person or group can provide, the temptation is strong to push hard—using persuasion, appeals, and sometimes even threats—to get our way.

But the risk is obvious: push too hard, and we risk causing offense and shutting down the conversation altogether.

As U.S. President Joe Biden took office in January 2021, he faced precisely this dilemma: whether to pressure 83-year-old Supreme Court Justice Stephen G. Breyer to retire. The situation raised difficult questions about the role of communication in negotiation—and illustrated when strategic silence may be the wiser choice.

Breyer, Retire?

President Biden’s predecessor, Donald Trump, had reshaped the Supreme Court during his four-year term, appointing three conservative justices and establishing a 6–3 conservative majority.

As the new president, Biden naturally faced pressure from allies who hoped he would begin shifting the court’s direction. Justice Breyer, then the court’s oldest member and a member of its liberal wing, appeared to many observers to be the most likely candidate for retirement.

Yet upon taking office, Biden reportedly warned his staff not to pressure Breyer to step down, according to reporting by Katie Rogers and Charlie Savage in New York Times. Biden, who chaired the Senate Judiciary Committee at the time of Breyer’s 1994 confirmation, held personal respect for the justice and his institutional role.

At the same time, liberal advocacy groups were already urging Breyer to retire. Academics ran newspaper ads, and advocacy organization Demand Justice even sent a billboard truck around Washington, D.C., carrying the message “Breyer, retire.” Additional pressure from the White House could have seemed heavy-handed and risked alienating the justice.

In an August 2021 interview, Breyer had hinted that he didn’t want to be replaced by someone who would reverse the work he had done but said that “many considerations” factored into his retirement decision. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment,” he wrote in his 2021 book, The Authority of the Court and the Peril of Politics. Such statements suggested that Breyer would not appreciate being pressured by the Biden White House to retire.

As president, Biden stuck to his strategy; he didn’t speak to Breyer until the justice hand-delivered his resignation letter, advisers told the Times. However, the president and his advisers did prepare for Breyer’s possible retirement by considering potential replacements.

Dancing around the Question

Other presidents have handled similar situations differently, illustrating how delicate communication choices can shape negotiation outcomes.

During the Trump administration, White House counsel Donald F. McGahn II reportedly cultivated a relationship with Justice Anthony Kennedy before Kennedy’s 2018 retirement—without directly urging him to step down. Instead, McGahn discussed judicial vacancies and recommended candidates connected to Kennedy’s professional circle. Kennedy eventually retired and was replaced by his former clerk, Brett Kavanaugh.

Earlier, President Barack Obama also avoided directly urging Justice Ruth Bader Ginsburg to retire, though he reportedly raised the issue indirectly in private conversations. Ginsburg chose to remain on the bench and passed away in 2020, after which President Trump appointed Amy Coney Barrett as her successor.

Following Breyer’s retirement announcement, Biden took the unusual step of inviting him to publicly discuss his decision at the White House—perhaps offering the justice a moment to frame his own legacy.

Each example highlights the delicate balance between persuasion, timing, and restraint.

Silence Versus Communication in Negotiation

Biden may have benefited from Breyer’s independent decision to retire, but the broader lesson applies far beyond politics: sometimes the best negotiation move is to step back rather than press forward.

Here are a few guidelines for your negotiation preparation:

1. Show deference and respect: Whether you choose direct communication or restraint, demonstrate respect throughout the other party’s decision-making process. Study their temperament, past actions, and values to avoid missteps.
2. Let Others Apply the Pressure: If others are already advocating your preferred outcome, it may be wise to stay in the background. And if pressure becomes excessive, encouraging others to ease off may prevent backlash.
3. Focus on Mutual Gains: Persuasion alone rarely changes minds in sensitive negotiations. Instead, consider what interests or concerns truly matter to the other party and whether solutions exist that serve both sides—without harming others affected by the decision.

Negotiation is often associated with persuasive communication. Yet, in some situations, patience and restraint preserve relationships and allow outcomes to emerge naturally.

The challenge is knowing when to speak—and when silence serves you better.

What factors do you weigh when deciding how much persuasion to use in negotiation?