Attorneys In Mediation: Don’t Beat A Dead Horse!

January 30, 2019By Bill RatliffUncategorized

In one of my very first columns for this blog, I advised my readers that persistence wins in mediation. While I stand by that advice, there is another kind of persistence that absolutely, positively doesn’t win in mediation — the kind referred-to in this post’s title.

Beating a dead horse: What a descriptive phrase, when you think about it. Whether your goal is to discipline, correct or motivate, if a horse is dead you’re wasting your time and effort beating it.

Been there. Done that.

When I used to try cases, trial judges would advise me,“You’ve made your point, move on!” Which, of course, is a judge’s way of saying Don’t beat a dead horse.

Sure I’d made, and repeated, my points enough to irritate judges — and yet, I often felt compelled to make my point, over and over again. I guess, at the risk of brow-beating the jury, I wanted to make sure that I was heard and understood. The problem was, of course, that I was being counterproductive.

I think that I was unintentionally insulting the jury by repeating myself as if they were not smart enough to understand what I said the first few times. A friend of mine has a standard response when his wife does the same thing to him: “Sweetheart, I already bought that car and drove it home. Please stop trying to sell it to me.”

To be honest, I’ve been guilty of doing the same thing myself at home. Sometimes my wife or children will say “Here comes another sermon from Dad.” What they really mean is that they’ve heard me driving-home my point so many times, it’s no longer helpful. At that point, you’ve made you’re point, and then — by aggravating your audience — you’ve probably unmade it.

I’ve even done it as a mediator.

I recently conducted a mediation for which the lawyer had her client participate by telephone. The way it worked out, I was never allowed to speak with the client. I felt compelled to make my points over and over again to the lawyer, in hopes that she would then communicate it to her client. After I made the same point three times, she rebuked me saying “Enough is enough! My client isn’t here. I heard you the first time.” Her message was clear: “Stop beating that dead horse.”

How about you?

In whatever we do, we all want to be effective communicators. We want to make sure that our message is heard and understood. As you consider this issue, ask yourself “Do I tend to become a dead horse beater?” If the answer is yes, you may need to rethink how you can most effectively communicate your position without repeating yourself over and over again. I know I’ve had to rethink some of my own inclinations.

At age 62, it’s about time that I begin to get this right.

Enjoy the journey!

Please Click Here if you’d like to review my calendar of available dates and schedule a mediation with me. And thank you!
—Bill Ratliff

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