One of the biggest buzz words we are hearing today is rhetoric. Rhetoric is the way in which a speaker voices their thoughts. There are two definitions of rhetoric, both of which we can witness by turning on any news station covering the election:
Definition 1: The art of effective or persuasive speaking or writing, especially the use of figures of speech and other compositional techniques.
Definition 2: Language designed to have a persuasive or impressive effect on its audience, but often regarded as lacking in sincerity or meaningful content.
In politics and mediation alike, people often enter a room or conversation with a strong set of beliefs. Their minds are already made up about what they want, why they want it and why they deserve it. They firmly believe their reasoning is the only true version.
The challenge in both fields is, how do we persuade people to have an open mind and consider another point of view. This, of course, is essential to reaching a settlement in family law mediations (and winning an election).
The Art of Communication
Rhetoric is not a new concept. Over 2,000 years ago Aristotle defined three different types of rhetorical appeals used to persuade others – ethos, pathos and logos. Ethos is the credibility that makes a speaker compelling. Pathos is the emotional connection they create. And logos is the logical arguments they use for persuasion. Aristotle’s lesser known term kairos refers to the elements of a speech that acknowledge and draw support from the particular setting, time and place that a speech occurs.
As a mediator, it is critically important to choose which type of rhetoric and persuasion to use throughout the proceedings. It is equally important to steer both parties away from ineffective rhetoric when it is clear they are not helping their own case. A quick study of the four modes of persuasion shows the pros and cons of their use by the professionals and individuals present in the mediation.
Ethos, which relies on expert credibility or experience, has great impact during mediation when coming from the mediator or an attorney. Clients on the other hand, should be dissuaded from trying to position themselves as the expert or authority in the relationship as it may upset the other party and disrupt the flow of the process.
Pathos, which relies on appealing to human emotions, is often the least respected mode of persuasion due to its inability to remain objective. However, in mediation pathos can be a powerful tool that connects the parties. Pathos must be used carefully so as not to dredge up negative emotions from the couple’s past or current situation. As emotions run high more often than not during mediation, it is important to steer away from pathos when one party is using it to manipulate the other.
Logos, which relies on logic to be persuasive, is a slippery slope when used by a party during mediation due to the common occurrence of faulty logic, referred to as logical fallacy. This fallacy can come in many forms including using an ignorant position as an appeal, using an insult as evidence toward a conclusion or an argument and straying from the topic with an irrelevant argument.¹ On the other hand, logos can have a positive effect on the process when one or both parties, and the attorneys, are equipped with sound and solid logic that helps decision-making easier.
Kairos, in terms of mediation, is the art of delivering the right message at the right time – by any party in the room. When used effectively, kairos can persuade one party to concede on a sticking point, shift the direction of a non-productive train of thought and help both parties reach a consensus. Kairos is essential for a mediator to have in their toolbox.
Family Law and Persuasion
In order for attorneys and mediators to use persuasion during a family law mediation they likely first need to use persuasion to win the trust and confidence of their clients. This typically starts with acknowledging a client’s struggles. When we validate an individual’s experiences and reassure them that we understand the challenges they have faced, they are more likely to look to us for guidance. Same goes for allaying fears. When we express understanding of valid or perceived suspicions and doubts and give them support and reasons to be strong and optimistic, our position as an experienced confidante strengthens.
Additionally, finding common ground and language with clients goes a long way. Known as confirmation bias, when people are communicated with in a way that confirms their beliefs and fits into their notions of fair and just, they often are more likely to be persuaded to move away from unrealistic demands and posturing.
Successfully managing the modes of persuasion requires that we be good listeners, too. One way to accomplish this is to practice “persuasive listening.” Persuasive listening is defined as², “actively listening to someone to understand their perspective and then using that understanding to guide the conversation toward a desired outcome or decision.”
An important element of persuasive listening is to pay close attention to the speaker’s words, tone and body language. By doing so, the listener gains a more thorough understanding of the speaker’s message, enabling the listener to more effectively communicate a particular action or viewpoint. This type of listening requires empathy, patience and an open-minded approach to understanding the other person’s perspective. When pathos, the element of human emotion, is involved, I particularly find that being empathetic to the speaker’s emotions often helps move the agenda along.
Having exclusively practiced family mediations over the past ten years, I have honed in on my skills for managing the primary modes of persuasion and practicing persuasive listening. I use these skills to help bring about creative solutions and amicable outcomes for both parties. Between my career in family mediations and 18 years of litigation, attorneys and parties can count on my expertise to manage the mediation process in an effective and successful manner.
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