Tag: Mediation Skills

Using the Right Words for Mediation and Negotiation

I recall one of my first mentors in the legal field advising me to work on changing my language to develop more powerful speech. As a young lawyer, woman, and minority over thirty years ago, in the very conservative insurance and financial services industry; I needed to learn how to make my speech work for me. My mentor gave me a book that started me on the path of not just choosing my words carefully, but consciously choosing subtle but powerful non-offensive words when needed. This simple but effective measure contributed significantly to rapid and positive results in my corporate legal practice. So, when I entered the ADR arena, it was time to work on my language again in two capacities – as a collaborative attorney and negotiator, and as a mediator.

 

I have observed advocates who are not mindful of their words, use counter-productive language when they are sincerely trying to negotiate or develop a mutual agreement or satisfactory resolution. Most of the time they are unaware of what they have said until it is pointed out. Other times they realize they should have chosen language more carefully but are not quite sure how. The problem is that most advocates are skilled gladiators and spend their time, energy, and focus on how to become more so. Many think or feel that it is not necessary to change their language or manner of speech; that just being inoffensive is enough. The fact is that using language – appropriate wording and manner, can greatly assist the advocate in effective and fruitful negotiations. One of my favorite quotes is attributed to Daniele Vare: “Diplomacy is letting the other person have your way.”

 

Suggestions for Mediation Advocates:

  1. Avoid language that sounds positional; speak in terms of the parties’ interests.
  2. Avoid blaming language, or language likely to evoke an emotional response at the sacrifice of rationality.
  3. Speak in terms of your client’s needs rather than making demands.
  4. When presenting a point on your client’s behalf, acknowledge something on behalf of the opposing party (a small face-saving item or positive attribute or action).
  5. When the first instinct is to use language that attacks, pause and think of a way to present the same idea, in a more acceptable way. (This may be difficult in the beginning, but becomes much easier with practice.)
  6. When other cultures are involved, research what might be considered rude or offensive in that culture with respect to manner and speech.
  7. Practice-practice-practice!

 

It has long been recognized that an important conflict resolution skill and mediation technique is knowing how to select language that will de-escalate a conflict. An advocate’s awareness of words and phrases that may be counter-productive, and the replacement of these words with more effective language for negotiation or mediation purposes, will greatly improve the potential for successful mediation and resolution.

 

 

Resource:

  1. Using Mediation Language, Coast to Coast Mediation Center, http://www.ctcmediation.com/mediation_language_techniques.htm

 

Client Participation in Mediation – To Speak or Not to Speak

The purpose of mediation is to give the parties an opportunity to have a discussion and possibly develop a solution to a dispute. The assistance of a skilled and experienced mediator helps to provide the parties with a facilitator who can assure a neutral environment, help the parties to explore options, and use proven techniques to overcome impasse.

A good mediation allows for creativity in problem solving and empowers the parties to come up with a solution tailored to their particular circumstances. In addition, the parties have an opportunity to vent and have their feelings acknowledged. This enables them to move on emotionally and psychologically, which serves to help them shift the focus from blame, battle, and defense, to problem-solving. The problem is that many advocates do not realize that in order for mediation to be effective, their clients must participate – be engaged. That means they have to talk. Otherwise, it is just a settlement conference where the parties abdicate control to their attorneys. A settlement conference does not provide for the flexibility, creativity, client venting or control in resolution development process.

 A mediator’s job is to get the parties to talk, so that the mediator has an opportunity to address hidden agendas and emotions that are at the route of their decision-making. Many times, advocates tell their clients not to talk, but to let the advocate do all the talking. It is immediately apparent to a mediator when a lawyer’s client has been so advised or instructed. In these cases, progress tends to stall and potential for success becomes more remote. Other times it is readily discernable that the client is afraid to speak and feels that they have hired the lawyer so that they do not have to speak. Good lawyers and mediators in this situation patiently and gradually work to increase the party’s comfort level and encourage them to speak, until they are doing so easily, shifting the mediation into a higher level and accelerated pace in the resolution process.

 An advocate who wants to make the most of the mediation opportunity for the client should work with their client to prepare the client for actively participating in the mediation process. Here are some suggestions for client preparation.

 

  1. Take the time to explain the mediation process.

Be thorough in your explanation and discuss the roles of each of the expected participants. Printed materials or videos available on the internet or published by various agencies or organizations are often helpful.

 

  1. Be specific about your client’s role and what is expected of them.

Go over carefully what is expected from the client by you, the mediator, and the other parties (including attorneys). Practice a bit with your client some scenarios in mediation to enable them to get comfortable with the process; specifically, opening, hearing from each party in joint session, caucusing, etc.

 

  1. Find out what your client needs to be comfortable in their environment.

Does your client have any special needs or preferences? Do they smoke and need smoke breaks? Can they sit for long periods? Do they have hearing or speaking problems (naturally soft voice or stutter?) Perhaps you can arrange for a seating arrangement that might be more conducive for your client’s participation.

 

  1. Give your client some positive examples or anecdotes of successful mediations.

Since your client may not have personal or professional experience with mediation, you can substitute with the positive experiences of others by anecdotal information. This gives your client a vicarious point of reference to draw from, and may also serve to give your client examples as to how they might like to participate.

 

Like anything else, preparation is the key for successful client participation in order to maximize the potential benefits of mediation.

 

Reframing in Mediation and Negotiation

“Reframing” is taught in all the basic mediator training courses, and mediator mentors and instructors evaluate and coach novices and students in mediation on their development of this acquired skill.”Framing” refers to the manner in which a client describes the way he or she sees a conflict situation, goal, concern (interest) or issue. Clients often describe their conflict in a negative manner (from the perspective of others), usually accompanied by emotional content or designed for emotional impact.  Reframing is a technique to re-word or re-state what the client has said more constructively.  This assists the client in re-evaluating their perspective, or clarifying what is important to them in the conflict situation.  Not only does reframing help the client better understand their own thoughts, it also assists in clarifying and de-escalating the conflict for the other client(s) and lawyer(s).

At this point, no doubt, advocates will think or say that it is not in their or their client’s best interests to use words that are not designed for attack or presenting their position in a less favorable or powerful light. That is true in litigation, but if the intent at the moment is to negotiate in good faith or to take full advantage of a negotiation opportunity, at least minimal or limited reframing should be considered. Good lawyers already do this when they think their client has gone too far and might be sabotaging negotiation, but they often fail to use reframing as a proactive tool in negotiation. Further, an advocate skilled in reframing can use this tool effectively in negotiation or mediation with respect to statements made by the opposing party.

Reframing should be done is a way that allows the client or opposing party the opportunity to clarify or correct the reframe if it does not adequately identify their needs.  Reframing should not distort the content of what the client or opposing party is saying.

Reframing can be useful in the following ways:

  • To tone down on a blaming or critical statement and state in a positive frame.
  • To shift from negative to positive.
  • To shift from past to future.
  • To identify the needs or concerns behind a stated position, which helps the clients to analyze their own perspectives and clarify their thoughts.
  • To identify the issue that needs to be resolved. This can be the start of building an agenda.  Be careful not to suggest or imply a solution in your reframe.
  • To emphasize common concerns or common ground.
  • To acknowledge emotions but not as a central focus.

A reframe should be “acceptable” to the client or opposing party since it helps clarify perspectives and shows that there is an issue to be resolved.

Be careful, however, not to simply reframe a position just by toning it down.  This will only serve to anger the client or opposing party, and solidify that position.

Examples of Reframe Questions:

  1. So, it is important to you that…
  2. What I understand you to say is…
  3. What you are concerned with is…
  4. What you need to see here is…
  5. Your goal would be to…

Clients who seek legal advice generally have no effective communication with the other client.  Since they cannot agree themselves, they turn to their lawyers to find a way out.  They may not want a legal battle, but they don’t want to do nothing or lose either.

 

Resource:

  1. Training/Article: Listening Skills in the Collaborative Process, Prepared by Palliser Conflict Resolution, LTD, with Thanks to William Stockton

Listening Skills in Negotiation and Mediation

As a collaborative lawyer and trainer, I am constantly working on communication and negotiation skills. One of the reasons I became a collaborative attorney is that the skill set needed is in many ways the same as in mediation, and therefore easily transferrable. The information below although not originating in the collaborative practice area, was contained in large part, from an article for collaborative professionals and adapted herein for Mediation advocates and negotiators in the broader sense.

Effective negotiations and successful mediations require communication skills beyond those necessary for success in litigation.  The ‘winners’ in litigation are lawyers able to get agreement from a judge, jury or arbitration panel, to their argument.  The opposing lawyer and client are not expected to agree, only to accept the judgment against them.  In contrast, success for collaborative lawyers and mediation advocates requires agreement from all parties.  This is a high bar.

Dialogue, not argument, is the most effective path to success in mediation.  Listening while in dialogue is critical.  Leadership in dialogue begins with listening.  In our traditional role as lawyers we listen to: analyze, agree or disagree (argue or debate) or advise.  We need a different kind of listening as advocates in mediation.

  • listening for understanding; and
  • listening for something new.

Why dialogue is critical to success in negotiation and mediation

Clients who seek legal advice generally have no effective communication with the other client.  Since they cannot agree themselves, they turn to their lawyers to find a way out.  They may not want a legal battle, but they don’t want to do nothing or lose either.

Dialogue is a form of conversation which transforms different viewpoints into a shared, new understanding that acknowledges part of the truth each client contributes.  Agreement is not the measure for mutual understanding.  When two viewpoints differ we are tempted to assume that both cannot be right, so we look for the best solution (usually our own) to the problem and argue for it.  Dialogue points in a different direction.  The first step is for the clients with a problem to reach mutual understanding of their different viewpoints.

Two fundamental ground rules for mutual understanding are:

  • I know I understand his viewpoint when he acknowledges I do, and
  • any new understanding that emerges must respect the partial truth of both my viewpoint and his viewpoint.

In the usual case neither client is willing to play by these ground rules.
It is expected that a good mediator will:

  • recognize when the dialogue has broken down; and
  • know what to do to get the dialog back on track.

However, most advocates think that this is solely the mediator’s responsibility and not theirs. This results in a missed opportunity for the advocates to assist in this process if do not try to so these things as well.

There is a sequence of developments in the unfolding of dialogue:

  1. Mutual understanding of differences where clients know that their viewpoint is understood even though they have different perspectives.
  2. Mutual recognition of a something new, a possibility that both clients want.
  3. A shared commitment to work together toward specific results all see as possible and acceptable.

Listening is a critical skill for participation in dialogue.  Listening for understanding is the most effective technique for getting to mutual understanding.  Listening for something new is a way to transform the “don’t want” stories at the beginning of dialogue into a shared understanding of what is important to both clients (their interests).  These are the most challenging moves in the transformation of an argument into a dialogue.

 

 

Resource:

  1. Training/Article: Listening Skills in the Collaborative Process, Prepared by Palliser Conflict Resolution, LTD, with Thanks to William Stockton