In my prior posts, we discussed how community mediators do things differently in mediation. Community mediators don’t just mediate, they work to make the lives of the parties slightly better than when those parties arrived for mediation. Whether you are an attorney, mediator, or a party in mediation, the following suggestions may make a huge difference in whether or not you succeed in mediation and whether or not you have happy clients:
1. Listen for the motivation and not position
When you listen to the opposing party’s point of view, try to understand where they are coming from. Listen to the words but also try to hear the feelings behind the words and the human needs which may be involved. It is easy to just label the other side as unreasonable. But the breakthroughs reside in the hard analysis and understanding associated with real listening, understanding, and persuading yourselves, your clients, and the other side. An excellent book on this topic is called Just Listen by Dr. Mark Goulston.
2. Rely on an effective process to get the job done
The most effective mediation process is one in which everyone has a role and participates in a productive manner. Such a process allows everyone to be heard and to contribute to the solution. This, of course, is your mediator’s job. But, if the mediator is attempting to inject his or her view into the process, it is perfectly appropriate for the parties to let him or her know that such an approach is not desired or acceptable. Keep the process productive by working on a solution, together and not dwelling on the obstacles. Sometimes, this is easier to do when you focus on the smaller parts of the problem and build momentum toward the larger problem. Implementing an effective process can help illuminate the solution because it uses the intelligence and creativity of all the parties to get things done.
3. Deal with, but don’t run away from, the other side’s anger
Anger is one of the biggest obstacles to getting settlements in place. Yet, many people, especially mediators, run away from it. They don’t want to deal with it and they don’t want to acknowledge it. When someone gets angry, they take a break or ask them to calm down. This is counterproductive at best. Whether it is your client or the other party, dealing with the anger and trying to understand where the anger is coming from is the best way to dissipate it. So when someone gets angry, ask questions and try to rephrase what it is that’s making them so upset. Even if you get it wrong, it is likely that they will calm down because you are listening and trying to understand what’s important to them.
4. Drill down past the surface with questions and not “I think” statements
This goes hand in hand with the prior suggestion. Instead of saying I think, try saying “if I understand you correctly…..” End this sentence by letting the other person know that you are open to being corrected, if your understanding is wrong. This will facilitate the conversation, and won’t shut it down, because it is a simple and effective way of getting the other person to realize that you are there to work with and not against them.
5. Use the art of persuasion and not scare tactics
As my NITA Blog postabout this topic put it, “Many view Mediation and Trial work as two separate and unrelated events requiring totally different skill sets. This perspective is not exactly accurate because, at their core, mediation and trial work have one thing in common. Both processes are about Persuasion.” We persuade people by letting them realize that they getting value and not having something forced on them. So, for those of you who are talented trial lawyers, and for those of us who have to work harder to persuade others, make sure that you are always striving for persuasion and leave the scare tactics at home.
At the end of the day, if you aren’t satisfied with how your mediations are going and your cases aren’t settling at the first mediation session, you have a few choices:
1. Keep doing what you are doing
2. Change the mediators you are using
3. Change your approach to the mediation process
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