Teaching the art and science of mediation brings to my consciousness a lot of pointers that otherwise reside in my subconscious. Two of them are the fine art of persuasion and the tool of persistence.

The textbook used in class (Frenkel, Douglas N.  and Stark, James H.  The Practice of Mediation (3d.ed., Wolters Kluwer, New York, 2018)) defines “persuasion” …”as an attempt to alter another person’s attitudes or actions” (Id. at 247.)  The authors note that the most effective persuasion “is done with others, and not “to others” as “[c]ompetent adults generally cannot be persuaded to do something unless they want to do it.” (Id.)

The authors then discuss several different “tools” of persuasion. The first is role reversal by which one party is asked to step into the shoes of the other party and consider the situation from that vantage point. (Id. at 257.) A second is “consider the opposite” in which a party is asked to consider all of the reasons why her viewpoint might just be wrong; that is to think about the weaknesses of her own case and the strong points of the other party’s case. (Id. at 259.)  A third tool is the apology (Id. at 261.) while the next tool discussed is to look at the needs and interests of the parties or to problem solve. That is, rather than looking at it as a zero-sum game, look at the situation to find ways in which both parties win. (Id. at 265.)  This may involve a bit of brainstorming by the parties: generating options that might just work to resolve the matter. (Id. at 266.) The final tool is evaluation: the mediator discusses the strengths and weaknesses of the matter with each party in a myriad of diverse ways.  (Id. at 267-270.)

As you might suspect, I had a mediation recently in which I had to employ some of these persuasive tools. It was a breach of contract. The parties were in a joint venture and according to their contract, they were to split the profit and expenses. What allegedly happened though was that plaintiff ended up paying all of the expenses and defendant kept all of the profits. And so, plaintiff sued to be reimbursed defendant’s share of expenses and to recover her portion of the profits owed under the contract.

This was the third attempt at settlement and trial was less than a month away.  Neither party really wanted to go to trial. But initially defendant was reluctant to pay any money to plaintiff.  So, I implemented some tools of persuasion. I met with the defense counsel and asked her to put herself in the shoes of plaintiff’s counsel and look at it from that vantage point. Plaintiff’s counsel also provided an accounting sheet of expenses which counsel allowed me to share with defense counsel. And so, I pointed out to defense counsel that these were hard provable costs; how did defense counsel plan to rebut this accounting at trial? What was defendant going to tell a judge or jury? Defense counsel admitted she had no evidence to rebut this accounting. At this point, I left the virtual room so that counsel could talk with her client. No doubt that conversation involved a “reality check.”

The result was that defendant was now willing to pay something in installment payments. It was not at much as plaintiff wanted. At this point, I discussed the issue that so much time and effort had been put into this, the parties go to trial and for what? A piece of paper that says “judgment” that plaintiff then has to spend more time and money to enforce. It might be better to stop chasing the defendant, cut one’s losses and make the best deal possible here and now. That is, I pointed out that plaintiff’s alternative of going to trial and obtaining a judgment was not all that attractive. It was in essence,” throwing good money after bad.”  So, gradually plaintiff agreed to take less than she wanted and by means of installment payments.

But then plaintiff’s counsel raised the issue that defendant having filed several bankruptcies in the past, may well do so again, thereby discharging this debt altogether. At this point, I met with both counsel and asked for a little brainstorming- to think of ways that a settlement could be reached without exposing it to a possible discharge in bankruptcy court.  At this point, I told the parties I was not giving up: I was going to be persistent and keep at it until the parties came up with some way to resolve this issue. Of paramount importance, I kept counsel talking with each other and refused to call it quits.

After a while, counsel did come up with a solution and slowly a resolution was reached. The matter settled.

So—with a little “persuasion” and a lot of persistence, even the most difficult of matters can be settled. It just takes patience and optimism!

…. Just something to think about.






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