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Persuasion – Does it apply in a Mediated Dispute?

Houston Arbitration MediationA recent article discussed in Mediate.com focused on the notion of “persuasion”, and whether it should be encouraged or discouraged in the course of mediation. The article rightly pointed out that many practitioners see the use of persuasion as a negative that can seriously compromise a mediator’s neutrality. The focus of the article centered on its impact within different mediation models (Facilitative vs. Evaluative).

The catalyst for much of what was discussed in this article comes out of a study by two university professors, Douglas Frenkel and James Stark, and entitled Changing Minds: The Work of Mediators and Empirical Studies of Persuasion. The study explored the significant amount of empirical data produced by various social science studies on the impact of persuasion in disputes. To a large degree that article was aimed at practitioners and at those interested in the subject as an area of study.

I found the article on the above referenced website to be thought provoking and I read the study as well. I won’t dwell on the guts of the study because as a practitioner I do not want to get lost in the forest. That said I do not find the notion of persuasion to be a verboten topic. More to the point, I think many mediators find the notion uncomfortable because they do not really understand what lies at the root of persuasion.

Before I get to this root let me state clearly that I do not attempt to persuaded one side or the other to adopt a solution, course of action, or any specific outcome.  Yet, persuasion is the root of many successful outcomes. So what do I mean by this? Well, the goal of the mediator is to get the warring parties to examine alternatives paths that will yield a mutually acceptable outcome.

The parties in conflict have to be influenced or urged to stop defending their position/issues, and coaxed into explaining their point of view, and at the same time get each side to listen to other’s point of view. Explanations lead to discussion and discussion leads to the implicit acceptance by both sides that the other side has a point of view. It’s not important at the beginning that either side accepts the other’s point of view as being valid, but once these points of view are fleshed out by the parties, the process of searching for a way forward becomes possible.

It is the process of explaining instead of defending where the parties themselves use the tools of persuasion to find the outcomes they need. It is the mediator’s role to understand this goal and to construct his or her questions in a manner that moves the dialogue away from attack and defend towards a discussion. Even in mediation that does not succeed, which sometimes happens, the tools of persuasion give the parties a chance to understand the other side more clearly and that is not a bad thing.

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