Settling with parties WHO hate each other

Most cases settle – after a fight. It would be more efficient to settle earlier, without the bloodshed; but how can we do that when the parties hate each other? As advocates, we focus on persuading the decision maker, often ignoring the fact that our powers of persuasion will also work on our opponent. Convincing the other side to accept our proposed resolution at the beginning stages of a case is more productive than spending years of litigation, only then to sit down and talk settlement. There is an easy, three-step method to get to the dotted line faster, with an outcome more beneficial to the client.

There’s no point advocating to someone who won’t listen, so step one is listening to the other side. Taking that first step is hard and can be unpleasant. If we invest the time to understand what the other side wants and why they want it, there’s a good chance they will listen to us. We can draw out information and make the other side feel heard by asking questions like: How do you see this going? What do you need from me?

Resist telling the other side what our clients want just yet. They’re not ready for that until we complete steps two and three.

Next, we must show that we have capacity and interest to resolve the dispute. If we are aggressive, the other side will spend their time and resources on litigation and will feel it is a waste of time to engage with us on settlement. When the other side believes we are part of the solution, they are more likely to invest in settlement efforts. We can show our bona fides by thinking of the things we would want if we represented the other party, then providing that information or support up front. It shows we understand the situation and are setting the stage for settlement.

At this point, the other side should be thinking that we are the most reasonable and nicest attorney they have ever met — and will suspect a trap. That brings us to the final step: building trust. That is done by following through on what we promised earlier, and by proving complete and accurate responses to questions the other side has asked. In family law, where I practice, financial disclosures must be exchanged before a settlement may be reached on financial issues, so I make sure those disclosures are done well. Providing complete and accurate information will show that our side is trustworthy. The truth is refreshing.

Now that the other side knows that we have the capacity to settle, trusts that we have honest intentions, likes us because we listened, the stage has been set for making a settlement offer. We are the most persuasive at this moment and are ready to deliver our client’s pitch. If the deal is reasonable and logical, our opponent should embrace it and advocate for its acceptance.

These techniques, referred to as ethos, logos, and pathos, are taken from the Greek philosopher Aristotle. Aristotle saw that our ability to persuade depends on how the other side assesses our credibility (ethos), the logical support for our position (logos), and the emotional connection we have made with them (pathos).

The approach works now just as it did 2,300 years ago. Borrowing Aristotle’s secrets of persuasion, we can settle cases when the parties hate each other by giving the other side a reason to trust us, showing them that we are problem solvers, and then appealing to logic by presenting a reasonable offer.