Perhaps nothing generates greater resistance during settlement negotiations than aggressively advocating one’s position and/or criticizing the other side’s position in the presence of the other side, whether during direct negotiations between the parties or joint sessions in a mediation. When one side goes on the offensive, the other side’s natural impulse is to become defensive, thereby closing the door to active listening and reasoned discussion about the issues that stand in the way of settlement. One way to avoid falling into that particular trap is to focus on asking questions and eliciting answers.

Questions are not generally perceived as criticism – at least when posed with sincerity and diplomacy – and therefore tend to be disarming. When people are presented with a question, as opposed to an assertion of something as fact, they are more prone to listen, to reflect and to then provide a thoughtful response.

For example, instead of dismissing certain witnesses as utterly lacking in credibility, consider asking opposing counsel what evidence he or she might be willing to share that supports the witnesses’ credibility; instead of characterizing a settlement demand as outrageous and unreasonable, consider asking how opposing counsel would recommend that you present the demand to your client and/or insurance carrier so as to further the negotiation process; instead of arrogantly “guaranteeing” a seven-figure verdict in favor of your client, consider asking what additional evidence might persuade the opposing party to increase its offer.

Asking questions and eliciting answers invites the other side to collaborate with you to find solutions. At the same time, asking questions and eliciting answers underscores potential weaknesses in the opposing party’s position, but does so in a way which is instructive rather than argumentative, thereby creating an environment in which the opposing party may be more willing to reconsider its position. An additional benefit of asking questions and eliciting answers is that you and your client might learn new and valuable information which may lead you to re-examine your own positions.

Perhaps as importantly, asking questions and eliciting answers often keeps the dialogue going, and as long as the parties continue to talk there’s a better chance they’ll discover the answer to the ultimate question – how to get the matter resolved.

As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.

Best regards,

Floyd J. Siegal