Mindset: The New Psychology of Success

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This simple quote can help significantly increase your chances of settlement

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

Shahrad Milanfar

Related Posts:

What community mediation can teach attorneys about mediation, Part 1 of 3

What community mediation can teach attorneys about mediation, Part 2 of 3

Do you really know what you are feeling in mediation?

Five signs you have not properly prepared for mediation

Is walking out the best mediation or negotiation strategy?

The post What community mediation can teach attorneys about the mediation process, Part 3 of 3 appeared first on Mediation Aptitude.

Being present in mind for better results in mediation

In my earlier post, I started discussing what community mediation and mediators can teach attorneys about the mediation process. In this post, I will give you a few more concepts the community mediation model and community mediators can teach us about the mediation process.

4. Community mediators drill down past the surface with questions and not “I think” statements

Community mediators focus on core issues and not superficial positions to solve problems at mediation. This is a direct result of their training and ability to listen and look beneath the surface for issues which are driving the parties to take position based stances in mediation. They do this by drilling down on the feelings and emotions which have not been addressed before the mediation, using good open-ended questions. This helps them figure out the core values the parties bring to the table and how those core values impact the parties’ decision making process. They then integrate the core values into the conversation which allows the participants to see a broader perspective. Seeing the broader perspective – or as I’d like to call it, the 30,000 foot view, allows the parties to make the best and most informed decisions possible. Without this approach, we are often caught in a destructive loop of arguments and miscommunication which a lot of mediators and attorneys are at a loss to break. This is all done by asking hard questions and not “I think” statements.

5. Community mediators lead but don’t impose their judgment on the mediation process

I have been in many mediations where the mediator has felt compelled to tell me and the other attorney his or her opinion. They do this and then say, “Well, that aside, we are here to settle the case”. Unfortunately, this is very destructive to the mediation process and often results in a failed mediation. Why? Because as human beings, no one likes to be told that they are wrong and no one is likely to have an open mind when they are told they are right (or that they have a great case). Just ask yourselves whether or not you would change your position, if someone were to tell you that you are dead wrong. Would you change your position or have an open mind, if someone told you that your counterpart is dead wrong. Yet, even experienced mediators make this mistake.

The mediator’s job is to facilitate a productive discussion and push the parties toward a settlement which they craft. A mediator’s job is not to impose our values and judgments on the ultimate resolution of the case. The most effective way to do this is through questions, not by giving our opinion. Community mediators know this very well because it is a core part of their training. Their approach leads to settlement because they ask great questions rather than telling parties what to do. After all, who likes to be told what to do? This approach allows the parties to help structure their own settlement and fully participate in the mediation process. Who wouldn’t like having that control in their hands?

In my next blog post, I will discuss a few things attorneys and mediators could utilize to improve their chances of success in mediation.

Best,

Shahrad

Related Posts:

What community mediation can teach attorneys about mediation, Part 1 of 3

Do you really know what you are feeling in mediation?

Five signs you have not properly prepared for mediation.

Is walking out the best mediation or negotiation strategy?

The post What community mediation can teach attorneys about the mediation process, Part 2 of 3 appeared first on Mediation Aptitude.

Using empathy to effectively mediate your case.

As an attorney, I’ve been trained to be effective in depositions and in the Courtroom. I have learned how to spot a liar or someone who is tap dancing on the truth. Yet, it wasn’t until I became a student of the mediation process – specifically community, elder, and guardianship mediation – that I really got the perspective needed to truly understand what litigants face and what motivates other attorneys and other parties in reaching settlement agreements. I have this perspective from learning about, conducting, and teaching community mediation. So how is it that the community mediation model provides such perspective?

Here are the first three reasons:

1. Community mediators know how to listen for the motivation and not position

The way community mediators are trained focusses on listening for the emotions which drive the conversation. While the participants want to focus on position, the mediators will focus on the emotions and needs which drive the positions. They don’t get distracted by red-herrings because they know how to stay calm and listen for what’s important to the participants. This skill is important in mediation and in litigation because it provides a broader view of the facts and the people involved. In a way, this is reading between the lines and then bringing that information to the surface, which allows for a productive discussion. While it guides the process, it allows the participants to be involved and engaged in designing their own solution to their own problem. Who wouldn’t want that?

2. Community mediators know how to rely on an effective process to get the job done

The community mediation model is based on an effective process which facilitates communication between the parties. This process is designed to reduce tension and increase understanding. In fact, the process is so effective that it has allowed me to help resolve cases in which none of the parties believed that they were going to settle, when they arrived for mediation. By guiding the tone of the discussion, and not the content, the community mediation model helps craft a process in which all participants are vested in the process & outcome. This builds rapport and allows everyone to work together toward the unified goal of getting the case settled. When everyone buys into the process, they are ultimately working toward the same goal.

3. Community mediators know how to deal with anger

I teach a 3 hour seminar on dealing with anger in mediation. In my experience as a mediator, and someone who teaches about this topic, I find that dealing with anger can help significantly increase the chances of settlement. If we don’t ignore anger and help reduce or dissolve it, we can help the participants focus on what matters to them as opposed to how they can hurt the other side. In fact, I have had 3 cases where the parties had threatened each other physically, prior to the mediation, and were able to work through their anger and effectively settle their case, during mediation. If those parties could do it, I have hope that all cases can settle. I’m convinced that dealing with anger has allowed me to settle many more cases that what I would have been able to do without knowing how to deal with anger.

There are 3 other aspects to what community mediation can teach attorneys about the mediation process. I will be sharing those with you in my up coming posts. You can subscribe to this blog, in order to receive automatic updates.

Here are some related posts:

Do you really know what you are feeling in mediation?

Five signs you have not properly prepared for mediation.

Is walking out the best mediation or negotiation strategy?

The post What community mediation can teach attorneys about the mediation process, part 1 of 3 appeared first on Mediation Aptitude.

For more information, please see the state bar website:

http://www.calbar.ca.gov/AboutUs/PublicComment/201215.aspx

To support this effort contact the LPMC and the State Bar:

LPMT@calbar.ca.gov

laila.bartlett@calbar.ca.gov

The post Support MCLE reform in California appeared first on Mediation Aptitude.

As I’ve indicated before, these cuts are not good for anyone.

Here is the AP article with the details.

The post Los Angeles County Superior Court Cutting 431 Employees and 56 Courtrooms appeared first on Mediation Aptitude.

Peter points out that:

“Simply being able to feel is a feat in itself. We often spend considerable unconscious effort ignoring what we feel because it can be painful. Who wants to be afraid or jealous or insecure? So we stifle the feelings, argue ourselves out of them, or distract ourselves with busy work or small talk.”

Avoiding your feelings leads to a lot of problems in our personal and professional lives because that approach hinders our progress personally and professionally. In fact, if we look back at some of the bad decisions we have made in our lives, we can trace them back to decisions which were made by ignoring our feelings and human needs.

So, how do we change our approach? Peter has a good suggestions about how to get to the root of the problem.

“How do you get to those feelings? Take a little time and space to ask yourself what you are really feeling. Keep asking until you sense something that feels a little dangerous, a little risky. That sensation is probably why you’re hesitant to feel it and a good sign that you’re now ready to communicate.”

This leads to a more difficult question of: How do you know what you are feeling? I teach a mediation training workshop which is built around how mediators can deal with angry participants in mediation. In that workshop, we talk about how mediators can help participants get to the bottom of their feelings. After all, feelings drive all of our positions and our decision making process. In order to do this, the mediators need to be in tune with their own feelings and how feelings can drive the mediation process for participants. Doing this allows mediators to better understand the parties and be more effective during the mediation process.

To better understand your own and others’ feelings you can start by asking a few questions:

1. What words am I (or the other party) using to describe this situation?

2. What human needs are driving those feelings (need to be heard, understood etc…)?

3. How are the human needs and the words driving the thoughts and our (or the other party’s) decision making process during mediation or in life?

4. How can acknowledging those human needs and words, help us understand the feelings behind the position during mediation?

5. How can acknowledging the human needs and feelings facilitate a more effective discussion making process during mediation?

The bottom line is that as mediators, the process is the most important part of the experience. The more you try to understand the parties and their feelings, the more success you will have in mediation. As always, the journey is what drives the results. Don’t be afraid to look deeper and your mediations will be incredibly successful.

Shahrad Milanfar

To read more from PETER BREGMAN or read his article “Do you really know how you are feeling?” click on his name or the article name.

Here are some other mediation related posts:

Trust, Morality & Mediation

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Conflict Resolution Programs

Community Mediation Training
  April 12 – 29, 2012

This 28-hour training follows the California Dispute Resolution Program Act approved curriculum. 
Mail registration and payment to: Center for Human Development 391 Taylor Blvd., Ste. 120 Pleasant Hill, CA 94523-2275

 Are you a natural peacemaker? Do your friends and family say you are a great listener? Do you feel you mediate at your job? Would you like to sharpen your conflict resolution skills?  

You will learn new skills:

▪                LISTENING to allow others to become more willing to speak to you;

▪                SPEAKING to allow others to become more willing to listen to you;

▪                NEGOTIATING AND MEDIATING DISPUTES and enabling others to speak and listen to one another;

▪                HANDLING difficult people and difficult situations;

▪                UNDERSTANDING ANGER and how to deal with it. 

Participants will learn the structure, design, and practice of dispute resolution and its use as a problem-solving technique. Trainees will gain skills in problem identification and disagreement management, plus strategies for achieving agreement/settlement. The course will focus on such cases as landlord/tenant, customer/merchant, neighbors, family, workplace, relationship conflict, real estate, and other community disputes. Trainees will practice acquired skills throughout the process. Participants will receive a Certificate of Completion.

For more information click on this link:   
CRP Spring Training

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“He was down to earth and engaging. He provided real-life tools to handling tough situations.”

“By far, I learned the most from Shahrad. He knows his stuff, was willing to send students his objections, very passionate about depositions and the NITA program and very articulate. I wish I could sit in on his depositions!”

“He was amazing at telling us what we needed to know in a way that gave us a lot of confidence that we could pull this off in real life. He is full of energy and enthusiasm.”

If you are interested in learning how to properly prepare for mediation, you can checkout my online course: The Key to Effectively Mediating Your Case

The post Student Feed Back appeared first on Mediation Aptitude.

2. Your client is not prepared to make tough decisions, during the mediation.

3. Your client gets angry at you, during the mediation.

4. Your presentation, during the joint session, sounds like it is being given by a fifth grader.

5. You and your client are utterly surprised that other party has different views of the case.

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