By Bill Adams, Gunster Jacksonville managing shareholder
I have a terrible habit, and I’m sure I’m not alone.
Too often when in a discussion, I go into “argument mode.” The other person says something and I start thinking about where I want the conversation to go, I’m considering the reasons for going to that place, forming the positions I am going to take in order to get there. I’m looking for the exploitable weaknesses in the other’s statements that can be used to establish the justness of my cause.
I do this in all contexts — at work, in conversations with friends and at home with my family. My wife hates this part of me. She’ll call me out for “lawyering” her every time, but it’s what I’ve been trained to do.
After all, a good litigator does one thing: Win arguments.
When I mediate cases, I always advise the parties that I will not decide which side is “right.” I usually give a semi-dramatic gesture toward the courthouse, telling the parties that the judge will decide who the winner is, but only after they spend a great deal of time and money.
Parties and their counsel nod in agreement, leaving me feeling like I have imparted some great wisdom.
Yet, almost immediately after hearing my great opening, the parties get into “argument mode” and resume the business of trying to convince the other side (and me) that their position is the right one.
The outcome is as predictable as the effort. It never works.
Why not? Because there is no winning.
In mediation, as in life, there are only two outcomes on contested issues: An agreement or a disagreement.
Life is not a courtroom. Out in the world, there is no grand referee that picks winners and losers. You can either find yourself at a negotiated conclusion or you can continue the disagreement.
So why does argument mode fail us, time after time? Go back up and review the first paragraph again. The careful reader will note a critical absence. Argument too often focuses on being right, rather than listening for openings to find agreement.
Argument mode says, “I want the other side to listen to me because I am right,” but I am not listening to them, other than to find ways to show how right I am.
Is this persuasive? Am I convincing anyone of anything?
Negotiation is a process with layers. The main subject under consideration forms the substance of the conversation, but there also is the underlying negotiation of how much information the parties exchange.
Unquestionably, the side with more and better information is more likely to get what they want from a negotiation. So how do you get a reluctant opponent to share their secrets?
The best negotiators put the other side at ease, extract the information they need and then use it to steer the conversation to their benefit.
If you want the other side to engage with you, engage with them first. Ask thoughtful questions. Listen to the responses. Concede the reasonableness of others’ desires, concerns and interests and, when they make good points, acknowledge them.
Positive feedback works. When you want someone to give you information, rewarding them with your attention is the best way to get more of that behavior. A gentle smile, a minor concession or a thoughtful question often will get you much further than your brilliant argument.
By engaging with your counterpart, you will learn more about their interests and positions, giving you a definite advantage and increasing your chances of a successful resolution.
Bill Adams is a Florida Supreme Court Certified Circuit Civil Mediator, a Florida Supreme Court Qualified Arbitrator and a Certified Mediator for the U.S. District Court for the Middle District of Florida.
