Whether arguing a case on behalf of a client or convincing parties that a mediated settlement offers the best hope of reaching the higher ground of resolution, there are some basic issues that each have in common. Of course, litigation and mediation are different brands of beast. I concede that a mediator should not be in the business of routinely advocating a particular outcome. Nevertheless, there are times when even a neutral must take a position in order to overcome impasse or to convince a party that a position is unreasonable. Either way, it is my belief that one must understand the nature of argument, and how to mold it to a particular venue in order to reach a successful outcome.
To make a convincing argument, whether to a judge or a participant in mediation, I believe that it is essential to have empathy. As Atticus Finch says to Scout in To Kill A Mockingbird, “You never really understand a person… until you consider things from his point of view.” Further, unless you understand a person, you will never be able to convince him or her.
Try to imagine the point of view of those individuals you are trying to persuade. Anticipate their questions and arguments before the person begins to verbalize them. Generally, different people will frame a similar situation in different ways. Where a person sits determines where he or she stands on an issue. In other words, education, environment, and social setting all influence an individual’s point of view on any given issue. If you can grasp a person’s paradigm, you can address the assumptions underlying the argument. With empathy and understanding, you can learn to recognize these underlying assumptions, anticipate arguments or impasses, and increase opportunities for favorable resolution.
Sometimes questions or statements do not really go to the heart of the argument. Instead of addressing irrelevant points, spend the time to subtly educate the other party so that each of you is truly addressing the salient issues. Again, only by understanding your opponent’s perspective can you possibly know which issues to keep and which to discard.
While your words are critical to effective argument, your image can be equally important. Portraying the proper image can often leave an audience or opponent with a mental picture that lays the groundwork for persuading them to your point of view. I have found that a balance of self-confidence combined with self-deprecation is the most effective way to present an argument. Try to appear assured but not arrogant, open but not equivocal, commanding but not closed. Always show your audience that you are actively engaged. Listen carefully, not defensively. As the mediation community would say, “Listen to understand, not to agree.”
Remember that respect is the basis for any intellectual exchange. If the other person were not worth persuading, you would not try in the first place. As mediators, we often emphasize to our clients the importance of maintaining a relationship with an opponent. One of the beauties of mediation is that it allows the participants to maintain relationships in the face of conflict. If we value the relationship, we treat our adversary with respect. We listen actively to their point of view. We think the other person’s argument through, rather than repeating formulaic points. Creating an enemy is a sure way to lose an argument.
There will be times when an opponent simply will not budge from a position. What can you do to overcome the impasse? Sometimes the easiest answer is also the most effective. Simply concede the point. This can be the most effective way of overcoming the impasse, reclaiming the common ground, and re-enforcing mutual respect. Conceding a single battle allows you to win the larger war. Withdraw gracefully and engage elsewhere.
Finally, whether mediating or litigating, keep the conflict in perspective. Our disputes are seldom as important as we might think at the time. Winning or losing is seldom as important as the process itself. As with any process, it is the intellectual stimulation that is valuable. In the end, the process itself is all that is really at stake.
KEYS TO EFFECTIVE ARGUMENT