A commercial litigator's guide to winning arguments

Every day each of us will have arguments of varying degrees of seriousness. But how many of us stop to think about what drives these disputes and what we can do to influence the outcome?

As a commercial litigator I am afforded an up-close view of the nature of disputes and am able to share a few observations which may help you argue better or, if you reach a state of enlightenment, potentially avoid the argument altogether.

What is winning?

It seems a simple enough question but take a moment to think about it and you begin to realise that there are degrees of winning – and losing. Absolute victories and pyrrhic victories can both be described as wins, but the outcomes are very different.

So, is winning simply a case of getting someone to agree with you? Add in a few factors and you will begin to see that it is not quite that simple.

Take the case of a service provider and a key client who has stated that they are dissatisfied with the last piece of work and refuse to pay the invoice. A dispute has arisen and the service provider wants to win, but what does that mean? The simple answer is to get paid what is owed. But what if the key client’s business is just too valuable to lose?

Winning, in this scenario, may therefore mean getting paid and retaining the working relationship. A ‘win’ that comprises both these aims might be more difficult to achieve.

It is possible to add an almost unlimited number of addendums to the definition of winning, to include other factors such as recovering the payment without spending more in the process than the sum in dispute, settling the dispute within a particular timeframe, and so on.

It is important to think carefully about what a win looks like to you and to avoid getting distracted by side issues. If you are not moving towards your objectives, then you may find yourself spending time and money moving away from them.

Validating your opponent’s position

We have all witnessed arguments where a cross word or a wrong step leads to a heated exchange. The instinct that often comes to the fore in these situations is the belief that if you shout a little louder, get a bit angrier, or hold your ground for longer than your opponent, then your argument will prevail. However, the substance of the argument rarely progresses to a resolution because neither party is really listening to the other.

One way in which to break this deadlock is to validate your opponent’s position. This means taking both control and the initiative by demonstrating that you have listened to and heard them, by, for example, saying, ‘Thank you for explaining your position. I get it.’

Do not mistake this approach for a concession or defeat. Rather, what follows is an explanation as to why you disagree with their position. But validating their position in this way may give you and your opponent the perspective to move beyond a reactive argument toward a more constructive discussion as to what happens next.

Finding a receptive ear

It is likely that your opponent’s view of the issues will be coloured by emotion as well as their own agenda. If you identify a good point and seek to deliver it without an appreciation of the context in which it is likely to be received, then there is a strong chance that it will miss its mark.

This is particularly important as people are quick to form views but slow to revisit or change them. So, what can you do to mitigate against this risk? The answer is to look for a receptive ear. This means delivering your message to someone who is prepared to listen and who is in the right state of mind to process the message.

To this end, it can sometimes be helpful to use a third party, who is able to take an objective view, to communicate the message on your behalf and potentially to act as an honest broker.

A matter of principle

The sensible commercial litigator will tell you that there are only two reasons to litigate – to make money or to save money. Arguing over a point of principle can be costly, yet it happens with some frequency. But why?

A principle, in its strict sense, is a tenet or code of conduct by which you choose to live your life. What often happens when you are in dispute is that one particular principle, from your list of many, is elevated to take precedence over all of the others.

And so if you find yourself on the cusp of an argument, take a moment, if you are able, to ask yourself what it is you want to achieve, at what cost, and why. If you do, this could end up saving you a great deal of money, time, and aggravation.

Daniel Gleek is a senior associate in the dispute resolution team at Howard Kennedy

@HowardKennedy_ www.howardkennedy.com