Tag: Preparing for a Mediation

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.