One of the major tools in a mediator’s toolbox is “persuasion.” Either through training, experience and/or intuition, a mediator learns tactics that can be used to “persuade” a party to compromise and settle a dispute.

My friend and colleague, Maria Simpson Ph.D., defines “persuasion” as “…helping people agree with us through the use of logical argument.” She goes on to explain:

“We point out the positives of our positions and explain why they outweigh the positives of the other position. Notice that I started with the positives of the other side’s position, not the negatives. Starting with the negatives or even dismissing the other position will be perceived as disrespectful… .”

As we all know, simply pointing out the positives of each position does not usually result in a resolution. More times than not, the other party will defend her positives by outlining the negatives in the persuader’s position. In response, the persuader will have to address the negatives, hopefully showing that the other party’s position has more and stronger negatives, yet do so in a respectful manner.

But oftentimes, “persuasion” does not work. The logic, rationality and clarity of the persuader simply does not sink in. So - Plan B comes into play - the subtle or not so subtle use of “pressure”. The problem with the shift to “pressure” is that it is often delivered in a loud tone, laced with anger, frustration and force. Both the tone and language used are often argumentative, thereby making the listener, (aka the other party) defensive - her “fight or flight” response kicks in as she now feels she is under attack. Consequently, the “pressure” tactic will backfire.

My colleague, Ms. Simpson, suggests that if one must shift to pressure, do it with a light touch - stay calm, quiet and respectful in your delivery. This reduces defensiveness and may even produce trust to the point that the party will be open to what you are saying.

Ms. Simpson’s Two Minute Training tip resonated with me because I had just concluded a difficult “lemon law” mediation in which the plaintiff refused to listen either to counsel or to me. Her counsel strongly recommended settling the case, urging that it was not a strong case for trial; in fact, counsel advised that plaintiff had only a very, very slight chance of winning. When counsel determined that plaintiff was hearing “but not listening,” she implored my help. First, I tried the art of persuasion, discussing the facts of the case as both plaintiff and defendant saw them (obviously - the views were different!). Plaintiff shrugged off the opposing views, asserting she was convinced she would win in spite of what her counsel just told her. So, I shifted to the use of “pressure”, using a quiet respectful tone laced with empathy (as with a “difficult” person). Plaintiff continued to shrug me off, stating she was ready to go to trial. To both her counsel and me, she simply was not listening: she was tuning us out completely.

After a few hours of this, her counsel terminated the mediation, feeling we were getting nowhere! We said our good-byes and she and her counsel left.

But then - a strange thing happened. A few hours later, I received a phone call from defense counsel stating that plaintiff had come around and made a reasonable demand. Within 48 hours thereafter, the case settled for a reasonable sum.

Evidently - plaintiff was “listening” after all. What I and her counsel had said - had sunk in! And, I would like to believe that the delivery - in a quiet, non-threatening respectful way had a lot to do with it!

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by Phyllis G. Pollack

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com