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

 

Mediation Preparation

Mediation Preparation: 4 Ways to Prepare Your Client to Speak up

Why is mediation preparation important? Mediation allows parties to have a discussion and possibly develop a solution to the dispute. The assistance of a skilled and experienced mediator helps to provide the parties with a facilitator who can assure a neutral environment. Mediators also help both sides explore options and use proven techniques to overcome impasse.

A good mediator empowers the parties to come up with a solution tailored to their needs. In addition, each side has an opportunity to vent and have their feelings acknowledged. Speaking during a mediation session is vital to the overall process: it allows clients to move forward emotionally and psychologically. Talking during a mediation session helps to shift focus from blame, battle, and defense to problem-solving solutions.

It is crucial that, as an attorney, you encourage your client to speak up during the mediation. Preparing your client well will ultimately do wonders to help promote a successful mediation. Consider these tips on mediation preparation to help your client speak during an upcoming session:

Explain the Mediation Process Well

While it does take some extra time, it is crucial to make sure that your client understands how a mediation session works. Explaining the mediation process to a client will better prepare them for the sessions and alleviate some natural fears or worries. 

Be thorough in your explanation and discuss the roles of each of the expected participants. Consider sharing printed materials with clients so that they can take them home to look over. Online videos are also helpful in sharing what a mediation session looks like to prepare clients.

Be Firm in Your Expectations

Your client doesn’t know what you are thinking and doesn’t have the mediation experience that you have. Make sure to go over what you expect of them during the mediation process. Set clear guidelines and coach your client on their wording and demeanor. 

Consider practicing different scenarios with your client to help them get comfortable with the process. Take the time to walk through a mock mediation session with multiple characters representing what could happen. Touch on the opening part of the mediation as well as what it will be like when each side is allowed to speak and caucus.

Make Your Client Comfortable

While mediation sessions are often a good experience for both sides, they are nerve-racking for those who have never experienced them. Do everything within your power to help make your client comfortable within the session. Here are some common things to consider when making your client comfortable:

  • Do they have any special needs or preferences?
  • Do they smoke and would require smoke breaks?
  • Can your client sit for long periods of time?
  • Does your client have hearing or speaking impediments that could limit their ability to engage?
  • Would your client prefer having notes or reminders with them during the mediation?
  • Would your client benefit from a specific seating arrangement to help them participate more?

Keeping your client comfortable is key to calming their nerves and helping them participate during the mediation process. Remove any obstacles that could hinder their thought process or shut down their emotions.

Share Results of Other Mediations

Again, many clients may have little to no experience in the mediation process. Help encourage your client by sharing other mediations with them. Perhaps find a mediation that was similar to the client’s case and how the client’s participation impacted the process. 

While it is helpful to show a positive mediation outcome, some clients may also need to see what can happen in a mediation that isn’t as great. Showing clients how their interaction can impact the outcome, either positively or negatively, is essential in mediation preparation.

Preparing your client to talk during mediation is the best way to find a solution. A mediator’s job is to get each side to speak in a controlled environment. If you do all of the talking for your client, progress may stall or even come to a complete halt.

Preparing your client to speak up for themselves during the mediation process will also speed up the resolution process. Make sure that your client is well prepared for their upcoming mediation session by going through these 4 ways they can speak up to make their opinion heard.

If you are a client needing mediation with a dispute, contact our office today for more information about how we can help you.

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

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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