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