By Abby Tolchinsky and Ellie Wertheim
March 17, 2015
Recently, we led a mediation training for a group of litigators, all of whom work in multi-party, high-intensity cases. The goal of the training was not to transform these fierce advocates into dispassionate mediators. Rather, we worked with them to develop communication skills—familiar to mediators—that would be effective for negotiating in an adversarial process. As the attorneys responded positively to the notion of incorporating some of these techniques into their daily practice, herewith, a few tools of the mediation trade.
Mediation is a consensual dispute resolution process. In broad strokes, the steps of the process are:
• Helping parties identify issues (creating an agenda all together);
• Clarifying the parties’ perceptions of the dispute (reflecting the parties’ interests and concerns around any given issue);
• And thereafter, exploring options for a mutually acceptable outcome.
Of course, in the midst of conflict, parties often express strong, entrenched positions. The communication skills of a mediator are designed to go beneath those positions, thereby creating progress in the negotiation process.
The traditional legal structure involves moving from positions to solutions. In contrast, mediators explore what is happening beneath the positions—asking the parties to refrain from jumping ahead to solutions, counterintuitive as that will sometimes seem. Instead, the mediator will engage in a conversation with the parties about the values, interests and concerns that undergird the positions.
For example, in a family business dispute, one side may wish to relocate the company headquarters while the other may be dead set against a relocation. In this scenario, “positions-to-solutions” would mean that one side would prevail, perhaps without learning the perspective of the other. The model of going underneath the positions is structured on the premise that learning why a given solution is preferred in turn opens up the discussion to creative solutions—ones that are more likely to have buy-in from both sides. So perhaps, one party wishes to relocate because of an advantageous tax structure; and perhaps the other can acknowledge that opportunity while explaining compelling reasons to remain in place, such as location of an existing customer base, family home, etc.
Once parties have the opportunity to hear and be heard regarding the values and interest that underlie their positions, the mediator still holds off from jumping ahead to solutions. First, there is a judgment-free brainstorming session. This phase is intended for parties to work together, creatively and freely. Indeed, we even encourage suggestions that may not work. Sometimes, a half-baked idea ignites a spark.
Also, by loosening up the range of potential outcomes, the parties are able to imagine and weigh various results against the values and interests that each has previously articulated. Ultimately, this exploration allows parties to go through the conflict, instead of jumping to an end point. By doing so, the solutions tend to resonate more deeply.
Three central ideas emerge from the mediator’s skill set.
• Generate an agenda all together. Parties generally come to the table with a strong sense of an acceptable range of outcomes. By taking a step back and creating an agenda, all together, from the outset each must take into account the issues that are important to the other. Moreover, we proceed by agreement, meaning all must agree which issues to address, and even in what order to consider them. This, in turn, creates a road map for the negotiation as well as defining the priorities of each party.
If all issues are identified at the outset, then the parties may begin considering where there’s flexibility to make trades and compromises. To use the above example, an agenda might include examining tax benefits of each location; cost of expanding in the current geographic area; costs of relocating; residual effects on employees and on the parties’ families, among others. Simply by naming the issues, the parties can preview the landscape of the negotiation. Moreover, they begin to undertake the discovery necessary for decision-making.
• Reflect Each Party’s Point of View. Mediation communication always employs certain techniques. The first is to reflect back a given perspective around any particular issue on the agenda. In so doing, a mediator demonstrates or confirms understanding of the participant’s statement; allows another party to hear the perspective through a neutral voice, perhaps in a fresh way; and provides the speaker the satisfaction of being understood.
For most people in conflict, the experience is frustrating, at best. One party is asserting why the other is wrong, and tempers may flare. When, instead, a party’s point of view is affirmed, and reflected accurately, the defensive posture softens. Being understood gives way to a willingness to listen to the other’s perspective. Vulnerable in conflict, each party benefits from having his views affirmed. When both parties’ interests, values and goals are fully in the room, there is a greater likelihood that each will be willing to shift from his initial, bottom line position. In other words, each begins to understand the other’s experience of the conflict.
How does this communication actually take place? For one, active listening and reflecting back by the mediator to ensure that, as the listener, you are fully understanding what’s being expressed. When a party says, “the factory has to move for tax reasons,” reflecting that statement sounds something like, “So for you, part of the agenda must be taking into account the tax burden of running the business. And you imagine that moving is the best way to achieve that goal.”
In order to get more information, one must ask open-ended questions, not cross-examine, nor should the mediator, at this phase, suggest any solutions. Finally, in order to distinguish between a position and an interest, the party’s interest behind the stated position should be elicited and reframed. In this case, perhaps, “So if I’m getting it right, you have cash flow concerns.” Or: “What I think I’m hearing is: you would like to discuss how to make the wisest business decision from a tax planning perspective.”
In turn, a party may then share a desire to free up cash because of plans to grow the business, preparing for the next generation to take over. That value too, would then be reflected back. In other words, these skills of reflecting and reframing are not used linearly—they are part of the flow of conversation.
• Helping Parties Shift From Positions. While reflecting and reframing, giving parties room to be understood and to hear the other’s perspective, the mediator allows—without judgment— each one’s sense of the conflict to co-exist. The conversation, step-by-step, proceeds by agreement. The parties are never pushed to compromise. Rather, they own the final outcome, having gone through the communication, rather than around it.
There are, beyond the communication techniques, a range of tools, including the law, that help parties move toward resolution. The law works in these conversations to minimize the range of reasonable outcomes. In other words, if a judge will likely decide somewhere between 100 and 300, the party insisting on 1,000 is too far afield in his offer and will have to offer some other incentive on an ancillary issue.
As mediators present the law, what is often helpful is a bit of legislative history. A thoughtful conversation about why this is the law and what values are brought to bear on society from this law can foster an understanding of the societal sense of fairness. For example, when discussing division of a medical practice in a divorce, the history of direct and indirect contributions by one spouse as the doctor went to medical school and worked with patients, are factors in the law of equitable distribution. Understanding the legal framework for valuing each party’s contributions may bring the parties closer to a negotiated settlement.
Mediators will also often emphasize common goals. For example, a profitable business and effective planning for the future. Perhaps, too, the parties will benefit from preserving aspects of their relationship—continuing to do business together in the future.
Similarly mediators may add ideas to a brainstorming session of potential results, though typically the best ideas come from the parties. One of the most powerful mediator tools is the use of objective analysis—providing the parties with an understanding of their alternatives to settlement, as well as the strengths and weaknesses of their case. Indeed, if there’s been sufficient groundwork of understanding, the mediator may suggest that each step in the other’s shoes and express themselves from the other’s point of view. Past practice between the parties, or maybe in the given industry, may also broaden the views of settlement.
Ultimately, the mediator oversees the negotiation process, but the parties determine the scope and terms of the final settlement, if any. It is through these skills, that the mediator elicits each party’s sense of fairness. And—essential to working toward compromise—this enables each to appreciate the other’s priorities as they work together to reach an acceptable middle-ground.