Medeval
Chapter 6: Opening the Process, Defining the Problem p. 141
CHAPTER 6
Opening the Process, Defining the Problem This chapter contains fourteen video clips, totaling approximately fifty-five minutes.
§6.1 THE MEDIATION BEGINS
The participants have arrived and the process is about to begin. How should the proceedings commence? As the mediator, what should you say and do? What role should the parties or their representatives play? This chapter analyzes the traditional opening stage of the process, in which the participants are seated and introduced, the mediator explains the process, the parties are provided an opportunity to make opening statements and the mediator begins to manage a process of exchanging information. In this chapter, we also introduce skills that are stressed in the opening stage but that continue to be important throughout the process: effective questioning, listening and note-taking, appreciating the multiple perspectives that are presented, and managing the expression of strong feelings.1
§6.1.1 GOALS FOR THE OPENING STAGE
Making good choices about one’s conduct as a mediator requires having well-developed objectives for each stage of the process. Virtually all mediators would subscribe to the following three key goals for the beginning of any mediation:
“Safety First.” You will want to make the participants feel as comfortable as possible. They may know little (or even be misinformed) about the mediation p. 142process and how it will work. They may feel defensive, anxious or even frightened to be confronting their opponents and may need assurance that the proceedings will be orderly and safe. Even if they are mediation-savvy “repeat players,” they will likely need to be provided with an overview of the process as you intend to conduct it, and everyone’s respective roles within it. Think of yourself as an attentive host at a dinner party and act accordingly. Although you may have a leading role in these opening moments, the mediation is ultimately not about
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you; it’s about the participants.
Develop Empathy and Trust: The Importance of Tone. Whatever you say at the beginning of the process, how you say it is also very important. Good mediators, we believe, are able to convey a tone of respect, self-confidence, patience, attentiveness, seriousness and simplicity.2 As we will see, developing empathy, authoritativeness and trust at the start of the process helps establish a foundation for later efforts to aid the actual negotiations.
Develop Empathy and Trust: The Importance of Good Listening. Since mediation is first and foremost a helping process, the participants must trust you and feel that you have their best interests in mind. Good mediators convey a sincere desire to understand each participant’s perspectives and concerns. The effective mediator treats “everyone as a person, not a case.”3 Giving each participant an opportunity to speak fully, without interruption, is crucial. So is attentive and respectful listening that demonstrates to each side that what has been said has “registered.”
§6.1.2 BEGIN TOGETHER OR SEPARATELY?
The traditional “joint” or plenary opening session approach just described is the default model upon which our book is based. But that model is not universal in practice, and has been criticized in recent years, with some commentators arguing that the trust-building, information-sharing, and resolution-seeking goals of the process can sometimes be more fully achieved by beginning with a preliminary separate session with each party. In a related development, in business and commercial disputes where all parties are represented by counsel, mediators report increasing resistance to starting the process with an initial joint session, whether or not the mediator thinks this would be helpful to the process.4 We explore this option in Section 6.3, infra, immediately after we have presented video examples of neutrals opening the process in the classic fashion.
§6.2 THE MEDIATOR’S INTRODUCTION
Mediators almost always open the proceedings by making some kind of introductory statement. Its length will vary depending on the nature of the dispute p. 143and the parties’ familiarity with the process. In court-connected mediations in which there is a premium on efficiency or in cases with highly experienced “repeat players,” the mediator’s opening remarks might be relatively brief. In complex, multi-session matters or where the parties are new to the process, the introduction might be longer and more detailed, tailored to the nature of the dispute. In a private divorce mediation, for example, the mediator would likely discuss a host of contracting topics, such as the number of sessions that will likely be required; the role that attorneys may play in the process; the potential need for family or
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child counseling; and the financial disclosures that will have to be made, as well as fee arrangements.
A Speech or a Conversation? Whatever the length and content of the mediator’s introduction, we favor an interactive, conversational style instead of a monologue. A boring speech risks being tuned out. Even though most participants will want to know about the upcoming process and about you, they may also be nervous at the outset, rehearsing to themselves what they will say when their turn comes to speak. Although the mediator’s opening may provide participants with time to acclimate themselves and get comfortable, they will also probably not be able to digest a lengthy presentation.
In addition, as in any professional engagement, the first few minutes can be crucial to developing some interpersonal connection and trust. Taking the time to inquire about something known about each participant (“I see from the complaint that you live in Park Slope as well. How far is that from Mr. Gould’s property?”; “What are your kids’ names and ages? Tell me a little about them.”; “Do you only do construction cases or do you do other kinds of law? How much of your practice is in this kind of case?”) can begin to establish rapport and pay case-related dividends later on.
Interaction about the process itself can be initiated by the mediator or by the parties themselves. The neutral can engage the parties in conversation by asking questions (“Have you ever participated in mediation before? You have? Where? Tell me about that experience. . . .” Why did you choose to try mediation?”) or by otherwise trying to draw the parties out. Alternatively, the mediator can invite the participants to ask questions in order to clarify points in his opening statement or raise concerns about any other matters. The key to successful interaction is the mediator’s welcoming and addressing such concerns— even if they seem to break the flow of his own remarks.
In cases of mandatory mediation, it is not uncommon for parties to interrupt or try to pre- empt the mediator’s opening by expressing resistance to participating (“This is too early in the litigation process for a serious discussion”; “I’m not interested in talking. I want her to have to go before a judge and explain what she did.”) Newer mediators tend to find such interruptions disconcerting, even threatening, and sometimes attempt to defer or avoid responding so that they can finish their prepared remarks. But addressing such interjections when they occur often yields valuable information, converts reluctance to openness, and promotes rapport. Put differently, if you were a reluctant participant in a mandatory mediation, and the neutral seemed to shunt aside your expressions of concern about having to participate, how would you feel?
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The Mediator’s Opening
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Regardless of how it is delivered, what are some key components and objectives of a mediator’s opening statement?
Introductions. If the mediator has not already done so, she will want to introduce herself to the participants and have them introduce themselves to each other and to her. The mediator should not assume that everyone knows one another; there may be attorneys or others at the table who have not previously met.
Key Elements of the Process. The mediator will want to describe the key elements of the process, explaining the reasons why things will be done, in understandable terms. This allows the participants, if they have not already done so, to make an informed decision whether (and how) to participate. It sometimes includes “ground rules” that all agree will govern the mediation. These can provide the participants with a sense of security and direction as the process moves forward.
The Mediator’s Function. Most mediators say something about their part in the mediation—what they will (and will not) do. This is useful even for sophisticated consumers of mediation, because different neutrals often conduct the process in different ways.
Touting the Benefits of Mediation. Many mediators try to explain the potential advantages of the process, especially for first-time users and parties who have been required to participate. This is designed to instill optimism and increase their “buy-in” to the process.
Confirm the Presence and Bargaining Authority of Necessary Parties. In appropriate cases, the mediator may want to confirm that all persons whose presence is necessary to settle the case are on hand and that they have authority to negotiate and resolve the matter. Note: anything short of “yes” obviously calls for follow-up discussion before proceeding further.
Establishing a Positive Tone. As an overarching goal, the mediator works to establish a positive tone for the discussions that will follow.
Video Illustrations
Here are excerpts of some mediator opening statements from our three video case studies. To remind you, one case involved a couple with a dispute about the custody of their children. Another involved a dispute between a contractor and a homeowner over a kitchen renovation. The third case was a premises liability case in which a tenant, claiming inadequate security, sued his former landlord for injuries suffered when he was accosted in his apartment by an intruder.
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Video Clip 6-A.
Watch first as one of our child custody mediators introduces the mediation process to Bob and Jane Fitzgerald. What do you like about this (fairly complete) opening? Is there some aspect you don’t like? What, if anything, would you have said or done differently? To what extent has the mediator accomplished the objectives listed above? Would his approach have been appropriate in a different kind of case—for example, a commercial dispute between hardheaded businessmen, with lawyers on both sides? If not, what might be changed to accommodate that setting?
p. 145Next we will focus more closely on some of the specific components of our mediators’ openings, across different types of cases. As you watch these extracts, closely analyze the mediators’ language and consider the following questions:
Introductions and Ice-breaking. It is not uncommon for mediators to introduce themselves formally, and then invite participants to call them by their first names and seek permission to call the parties by theirs.5 By doing so, they signal to participants that the mediation process is a less formal process than litigation. What are the case, party and mediator variables that might make suggesting the use of first names inappropriate?
Video Clip 6-B.
As already noted, the start of the process can be a time to use informal conversation to learn a bit about the participants and even the larger background or context of the dispute. But some participants may not be comfortable opening up to a stranger quickly. To break the ice in such situations, small talk can be employed. Is it used effectively in this video clip? If not, what informal chat topics, if any, might have worked better?
Video Clips 6-C (1).
Video Clips 6-C (2).
Video Clips 6-D (1).
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Video Clips 6-D (2).
Video Clips 6-D (3).
Describing and Touting the Process. With limited time to speak before the participants may start to get restless, mediators must decide how much they want to say about the mediation process. In the video excerpts that follow, what features of the process do these particular mediators emphasize? What additional points should they have made? The line between describing the mediation process and “selling” it is a fine one. Is it appropriate for a mediator to tout the benefits of mediation in order to try to convince reluctant disputants to participate? If it is proper, what are the most effective selling points in court-based mediations?
Video Clip 6-E (1).
Video Clip 6-E (2).
Video Clip 6-E (3).
Video Clip 6-E (4).
Role Definitions. In Chapter 3, we discussed different conceptions of the mediator’s role. Because of mediation’s variability, many mediators believe that it is important to tell the participants at the outset about their philosophy of mediation and how they will define and carry out their role. In the extracts that follow, what are the commonalities and differences among these mediators’ descriptions of their role? Can you tell the preferred role orientation of each?
Video Clip 6-F (1).
Video Clip 6-F (2).
Ground Rules. As noted in Chapter 2, effective mediators must be adept at managing conversations in which strong feelings abound and angry words are exchanged. Some mediators seek to establish “ground rules” as a way to try to avoid talk that is too hostile, chaotic or potentially demeaning to the other side. (“No personal attacks,” “no foul language” or “we ask that everyone treat each other with respect” are some typical
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formulations.) What are the pros and cons of having ground rules? Do you like the term “ground rules,” or is there a better way to describe this? Is it better to try to preempt interruptions, rude conduct and p. 146expressions of hostility before they occur or to assume that such conduct will not occur and deal with it only if it does? Is it better to set the rules yourself or involve the parties in devising them? If you were a participant, how would you react to these two mediators’ approaches to setting ground rules in the following video excerpts? Which approach is more likely to promote respect for the process? Does ceding authority to the parties regarding how communications will be structured in the mediation promote party self-determination? Is there a danger that it might undermine confidence in the mediator’s process expertise?
What about other possible ground rules not mentioned by our mediators? For example, might participants’ use of their cell phones, tablets or laptops create a potential impediment to productive communications? If so, should the mediator’s opening statement include a request to put these away, except for breaks? Why or why not? Would your answer differ if the mediator were taking her own notes on a laptop?
Explaining the Confidentiality of the Process. An operating principle to which all mediators subscribe is that confidentiality of the process is an essential protection that enables mediation to work effectively. It is widely believed that parties to legal disputes would be less willing to discuss their interests candidly, acknowledge responsibility for their acts or take the risk of proposing difficult compromises if they believed that their statements could be used against them if their case did not settle and went to trial.6
By “confidentiality of the process,” we mean that statements made during mediations—by the parties and by the mediator—will have some expectation of privacy and protection against being disclosed to the outside world. In legal disputes, this usually means that neither the mediator nor the parties will be able to testify at a later hearing about what was said in the mediation in an attempt to reach settlement.7
This is to be distinguished from confidentiality within the process, which applies to information revealed during caucuses (i.e., private sessions between the mediator and each party). The added protection for caucus discussions is aimed at enabling the mediator to obtain information from disputants that they might not be willing to discuss in front of their opponent.8 The typical mediator’s opening statement mentions both kinds of confidentiality. Ideally, it also explains the reasons why confidentiality is important to the process.
Video Clip 6-G (1).
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Video Clip 6-G (2).
In the extracts that follow, we have two examples of mediator statements regarding confidentiality. The scope of protection to be given to private mediation information is the subject of considerable debate—and great variation—around the country.9 If a state’s mediation law contains exceptions to confidentiality, should the mediator warn the parties about these limits? If so, how, specifically?
p. 147Gaining Commitment. Some mediators also try during their openings to obtain a verbal commitment from the parties to make a serious effort to seek a solution. (For example: “If a reasonable proposal to resolve this matter is put on the table, are you prepared to end it today?”) Their sense is that, having publicly agreed to such a request, the parties may be more likely to act in a cooperative manner consistent with that commitment. (As we will see in Chapter 9, research on consistency and commitment in persuasion bears this out.10)
The Order of Topics. Note finally that psychological studies demonstrate that, other things being equal, people tend to remember the first and last statements in any list of ideas better than items placed in the middle. (Psychologists call this the law of “primacy” and “recency.”)11 So, in addition to considering what topics she wishes to emphasize in her opening, the mediator needs to consider the order in which to discuss them. In general, what themes would you think it desirable to start and end with in the mediator’s introduction? Why?
§6.3 A KEY PROCESS CHOICE: TO START IN JOINT SESSION OR CAUCUS?
Now that you have observed an array of mediators in different cases opening the process in joint session, what factors, if any, might suggest the wisdom of departing from this format? Consider this recent case:
A Pakistani-American registered nurse (RN) was fired from her position last year at an assisted living facility. She alleged that her immediate supervisor, who was white, constantly belittled her work in front of co-workers, yelling at her for mistakes that were far less serious than those committed by other RNs who were Caucasian, and, to set her up to fail, had assigned her an “impossible” workload without giving her the training needed to complete the work successfully. While she was employed, she began to suffer a worsening of her chronic migraine condition. After she was terminated, she filed a discrimination complaint with the state human rights agency against the company that owns and manages the facility. She does not have a lawyer.
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The respondent, which denied all claims of discrimination, is a large company that manages sixteen assisted living facilities in the northeast region. When you arrive at the agency a half hour before the scheduled mediation, you learn that the complainant’s direct supervisor has recently retired and the company will be represented by an employment lawyer with twenty-five years of experience mediating and litigating discrimination cases as well as the company’s regional HR director, neither of whom has ever met the complainant. The complainant does not know this yet. The agency asks the participants to set aside three hours for the process.
Would you start this mediation in joint session or in caucus? Why?
p. 148Most mediation training programs do not (yet) acknowledge the potential value of a “caucus first model,”12 i.e., holding private meetings with the participants before convening an initial joint session. But if, as we have stated, the mediator’s paramount goals for the first stage of the process are to establish a relationship of empathy and trust with them, and to have the parties talk face to face productively, recent research suggests that commencing in caucus, and only later moving to joint sessions, may sometimes be a preferred strategy if conducted effectively. A 2007 empirical study of 1381 workplace and family mediations in the Netherlands found that when mediators began in private meetings, and used these meetings to build trust with the parties (rather than try to begin settlement discussions, which was found to be counter-productive), inter-party conflict was reduced and the likelihood of settlement was increased, compared to cases begun in joint session.13 This practice, while still controversial, appears to be catching on.14
Several factors might make opening in separate session an effective strategy in the RN’s employment discrimination case. With regard to the complainant: If she has no previous experience with mediation, it might be more productive to explain the purpose and limits of the process in a private meeting than in the more stressful environment of a joint session. Whatever her prior mediation experience, she might react angrily or be reluctant to participate on learning that she will not have the chance to confront or hear directly from the person who she feels wronged her or that the company will be represented by two strangers—including a lawyer, which she does not have. It might be preferable to work out these sorts of reactions—and, in the process, easier to begin to earn her trust—in private, before convening a joint session.
With regard to the respondent: A private initial meeting can allow the mediator to learn whether the employer has come to the mediation with settlement authority that includes both (non-trivial) monetary and non-monetary options. In such a session, the mediator may be able to help company representatives understand the potential value—despite its possible inefficiency— of holding a joint session and allowing the complainant to discuss past events in some detail and vent early on in the proceedings.
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Some countervailing considerations and complications: Given the 3-hour limit, is starting with a round of caucuses the best use of everyone’s time? Could holding such caucuses make the parties more resistant to a joint session? How fully should you allow the parties to present their perspectives (or to vent) in an initial caucus and what should be deferred to the joint session? If you hold p. 149preliminary caucuses, how should you modify your plan for the later plenary session in order to avoid the participants’ feeling that they are repeating themselves? What modifications, if any, would you make to your opening statement in an initial plenary session if you had already held a series of caucuses?
As we have stated, mediation participants and their lawyers are increasingly resisting beginning the process in joint session—or indeed holding joint sessions at all.15 This new trend in the field can present the mediator with an early challenge. If a lawyer for one party strongly advocates that the process begin in caucuses, as a practical matter must a mediator acquiesce in such a request? As you read the rest of this chapter, consider how you would deal with such a situation if you thought that early caucusing was a bad idea in a case you were mediating.
§6.4 DEVELOPING INFORMATION: MEDIATION AS AN INTERVIEW
Once (with or without any prior caucusing) she has convened a plenary session and introduced the process, the mediator now shifts her focus to the parties: For a mediation to succeed fully, they will need to provide information to the neutral and to each other that might bring about changes in thought and feeling as well as the seeds of potential solutions to the conflict. How is this accomplished?
It may be useful to think of mediation as a kind of three-way, goal-oriented “interview.” This interview ideally begins open-endedly, in what could be called a “helping” mode, in which the mediator encourages the parties to describe the problem as they see it, in their own words. (This is the opening stage, discussed in this chapter.) It then moves to more probing interventions, in order to uncover new and sometimes sensitive information. (This is information expansion, described in Chapter 7.) Eventually, it involves persuasive efforts, using both the information gathered from the participants and some that the mediator may provide, to help the parties see the conflict differently and achieve movement from earlier stances. (The negotiation and problem-solving stage is covered in Chapters 9-10.)
Three Types of Interviews. To help understand these ideas, consider that, broadly speaking, there are three major kinds of interviews:
The helping interview, in which professional counselors or advisors or lay persons
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help clients, friends, associates or family members confront personal, business or financial problems, develop greater insight about those problems and take productive action.
The probing interview, commonly associated with journalists, survey takers, police officers, physicians, insurance adjustors and the like. The central purpose of the probing or investigative interview is to obtain relevant information accurately and completely.
p. 150The persuasive interview, commonly used by sales, recruiting, fund-raising and political campaign interviewers. In persuasive interviews, the interviewer wants to influence how the interviewee thinks and feels, in order to persuade him or her to take action.16
For neutrals of most role orientations, mediation involves aspects of helping, probing and persuasion. To be effective, they must therefore master skills and techniques useful in all three types of interviews.
Mediation as a Helping Interview. All neutrals and disputants would agree that mediators seek to “help” in some fashion; most judge the effectiveness of a mediation by whether and how the problem that the parties face is resolved. Depending on their style and the nature of a particular conflict, mediators help disputants:
communicate and hear each other’s perspectives—both the facts of the dispute and the feelings associated with it;
understand their own interests, values and priorities and those of the other party;
negotiate effectively and make good decisions about continuing versus resolving the conflict; and
learn through this experience how to deal more effectively with conflict situations.
Like other helpers, mediators help people confront difficult issues, develop insight and decide what action, if any, they want to take. To better accomplish this goal, they establish an empathic collaboration with the disputants, so that they feel listened to, heard and respected.17
Mediation as a Probing Interview. But mediators also must be effective investigators: They must probe for salient details and explore potentially sensitive matters that the parties may not have broached themselves, may be reluctant to discuss openly for strategic reasons or may even be unaware of at a conscious level. This includes:
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Probing the History of the Dispute, Including Legally Relevant Facts and Evidence. By asking probing questions, the mediator helps each party unpack and elaborate his or her “story” and hear how it stands up against competing versions. In legal dispute mediations, the parties (especially if they have counsel) often expect that the facts—including harmful ones—will be carefully developed and that applicable legal principles will be considered.18
p. 151Probing for Interests, Priorities and Constraints. A mediator cannot help the parties problem-solve effectively unless she learns what they really need, why they care about it and what their constraints and alternatives to a negotiated settlement are.
Probing About Options and Terms for a Settlement “Deal.” Like a business lawyer’s or sports agent’s interview of a client concerning a proposed contract with a third party,19 mediators probe for information to help the parties create possible terms for resolving the dispute, asking them questions regarding what future arrangements are acceptable, workable, indispensable or “deal-breakers.”
Mediation as a Persuasive Interview. Finally, consistent with the norms of self-determined party decision making and mediator neutrality, most mediations include significant elements of persuasion, and appropriately so. These can include:
attempting to convince resistant mediation participants to give mediation a good faith try;
trying to help the parties empathize with the “opponent” or to see the dispute in the way that a third party might;
trying to convince mediation participants to put aside irrational ideas and objectively weigh the risks and benefits of different solutions;
trying to persuade parties not to give up in the face of apparent impasse;
asking questions designed to expose weak points, discrepancies and significant omissions in each party’s position that might plant the seeds of doubt or otherwise set the stage for bargaining flexibility; and
helping the participants to recognize the benefits of settlement and the risks and costs of continuing the conflict.20
§6.5 A PROGRESSIVE MODEL OF INFORMATION
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GATHERING IN MEDIATION: MOVING FROM NON- DIRECTIVE AND PARTY-CENTERED TO MORE DIRECTIVE AND MEDIATOR-GENERATED QUESTIONING
As the mediation process unfolds, shifting from helping, to probing, to a more persuasive mode generally means progressing from a non-directive, party- centered focus to a more directive, mediator-driven one.
p. 152Non-Directive Interviewing. In a non-directive interview, the interviewer cedes control to the interviewee to select the topics that he or she wishes to talk about; to decide whether, when and how particular issues are discussed; and to control the structure and pace of the interview. The interviewer does not impose his ideas on the interviewee; he assumes that the interviewee knows best what information is most important and how it should be discussed.21 Non-directive interviewers start by asking open-ended questions (“Tell us about the situation that brings us here”), and their follow-up questions tend to be party-centered, in that they arise directly from the topics that the interviewee has initiated. (“You briefly mentioned that you had words with the landlord when you vacated the apartment. Can you tell us more about that?”) Even when helping others to make decisions, non-directive interviewers tend to ask questions, rather than making statements. (“The tenant has proposed that you and he split the difference on your claim for two months’ unpaid rent. What are your thoughts about that proposal?”)
Directive Interviewing. In more directive forms of interviewing, the interviewer exerts greater control over the content, structure, pace and length of the interview. A central premise of the directive interview is that the interviewer is an expert who best knows the relevant subjects of inquiry and who, by controlling the questioning, can best develop the necessary information to guide the discussions and efficiently resolve the dispute.22 Directive interviewers tend to ask more closed questions, about interviewer-selected subjects they deem important to the case. (“Did you provide the landlord your forwarding address? Was it orally or in writing? It is important that I know about that.”) When moving the process toward decision making, they tend to make more directive statements, guiding interviewees toward action. (“The tenant has offered to pay you one month’s rent in order to avoid going to court. It’s your decision, of course, but that doesn’t seem like a bad offer in light of your admitted litigation risks, does it?”)
Because different kinds of inquiry tend to elicit different kinds of information, all mediators find it necessary to employ a combination of non-directive and directive and party-centered and mediator-driven approaches. How these will be combined in a particular mediation will
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depend on the mediator’s role orientation, the nature of the dispute, the disputants’ communication styles and the context of the mediation.23 For example, because non- directive questioning can be time-consuming, external factors such as significant time constraints tend to lead to more directive mediator behaviors.24 In disputes that are chaotic or very complex or where a participant has difficulty presenting basic information coherently, more structuring by the mediator may be required. That said, in this text we will put forward a model of information gathering in which, over the course of a multi-stage process, the mediator moves very gradually from non-directive, party-centered questions and statements to more directive, mediator-generated ones.
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§6.6 INVITING AND ASSISTING THE PARTICIPANTS’ OPENING STATEMENTS
After the mediator introduces and opens the proceedings, it is time to give the participants their first opportunity to describe the problems that have brought them to mediation. How should the mediator approach the beginning of the information gathering process?
§6.6.1 IN GENERAL, BEGIN WITH VERY OPEN QUESTIONS
Consistent with the literature on helping interviews, the mediator should start the process non-directively.25 In the great majority of cases, she should ask the most open-ended questions possible and strive to afford the participants uninterrupted time to share their perspectives and concerns. During this stage, the neutral should listen closely, demonstrating this through good eye contact, attentive posture and the like; take minimal notes; and encourage further disclosures by means of unobtrusive verbal and non-verbal prompts such as head nodding, “uh-huh,” “take your time” and “go on.” As the objective at this stage is to encourage as much disclosure as possible, the parties’ opening statements should be elicited with as little direction from, or intervention by, the mediator as possible. Why?
Open Questions Demonstrate Respect. First, open-ended, non-directive questioning demonstrates that the mediator trusts that each party knows what is most important and has the ability to communicate his or her concerns effectively. Eventually the mediator may need to probe for sensitive information or engage in various persuasive or even confrontational tactics. Allowing the parties to describe the problem in their own time and their own way is an important and respectful first step in establishing a trusting relationship that will make these later interventions easier to accomplish.
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Open Questions Give the Parties “Voice.” Second, open-ended, non-directive questioning promotes what procedural justice studies tell us many people in disputes prize most: the opportunity to be given “voice.” Regardless of whether people settle their disputes and regardless of the terms on which they settle them, disputants independently value the opportunity to tell their stories to persons who are really listening, in a non-judgmental way.
Open Questions Are Efficient. Third, open-ended, non-directive questioning is efficient. Although responses to such questions may be lengthy, they tend to provide a great deal of information to the mediator and the other side—including essential information about what is most important to the speaker.26 p. 154Well-formulated broad questions tend to produce information not only about the history of the dispute, but also important data about feelings, motivations and interests. Such responses help the mediator gauge the emotional content (and temperature) of the dispute, assess how the parties think and express themselves, and may provide a start on identifying mediable issues and diagnosing the dispute resolution barriers that exist.27
Open Questions Model Good Communication. Fourth, by asking open-ended questions and listening attentively, mediators demonstrate communication techniques that are useful for effective problem-solving: respect, patience, the willingness to listen without interruption and, importantly, interest in the other person’s perspective. If the mediator behaves in these ways, chances are better that the participants will too.
Open Questions Encourage Party Participation and Control. Finally, as we stated in Chapter 1, one of the hallmarks of mediation is that it seeks to involve those most affected directly in the resolution of their own disputes. Open questions put to the parties encourage their broad participation and control, allowing them to feel early on that it is their process, rather than yours.
Formulating Initial Open-Ended Questions: How Open Is Open? The openness of a question is a function of how much freedom the question gives the respondent to answer. Questions are almost infinitely variable in their degree of openness. Suppose that Sonia is interviewing for her first job after college. Compare these alternative opening questions by the interviewer:
“Very nice to meet you, Sonia. Why don’t you tell me about yourself?” or
“Very nice to meet you, Sonia. Why don’t you tell me about your educational background?” or
“Very nice to meet you, Sonia. Why don’t you tell me how you’ve liked college?”
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These are all open-ended questions, but they are obviously not equally open-ended. The first question invites Sonia to disclose anything she may feel comfortable disclosing. To this question, she might plausibly respond, “I like classical jazz, bird watching and sports cars.”
The second question invites Sonia to talk generally about her educational background— which might mean her elementary school, high school, or college background—at her discretion. (“Well, I was raised right here in Birmingham and went to the local public schools. Then I decided to go north for college and attended Boston University. . . .”)
p. 155The third question still gives Sonia somewhat wide berth but limits her answer to what she’s liked about college. (“Well, I really liked the summer internship I got, and my conflict studies course. And I know it’s dorky, but I really liked astronomy club too. . . .”) How questions are formulated matters, because people—especially those seeking expert or professional assistance—often look for and take direction from their questioners quite literally, focusing on the specific words they use.
In the mediation context, how neutrals invite parties to describe their conflict at the beginning of the process can significantly affect the nature and breadth of the information the parties share. Consider the following alternatives in a small claims court dispute between two former friends (Angelo and Hector) concerning Hector’s allegation that Angelo failed to repay a $1250 personal loan:
“Hector, let’s begin with you. From your perspective, what’s the situation that brings us here today?”
“Hector, we have studied the complaint in this matter and we know that you are claiming that that you and Angelo were friends, and that Angelo has refused to repay a debt. Can you tell us more about the situation as you see it?”
“Hector, we know you have a claim against Angelo. Talk about when things began to go wrong between the two of you.”
Which opening question gives the speaker the widest berth to respond? The narrowest? Which formulation do you like best? Why?
Video Clip 6-H (1).
Video Clip 6-H (2).
Video Clip 6-H (3).
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Video Examples. Now watch three extracts, in which two mediators in our consumer case and one of our child custody mediators, having completed their own openings, invite the parties to talk about the dispute that brought them to mediation. What forms of questions do they ask? Is there a connection between their invitations to speak and the responses they receive? Are the question forms effective, given each context?
When Might a Mediator Depart from Asking Open Questions at the Beginning of the Process? Note that the child custody mediator got very short answers to his initial questions. Why? Was his approach to initial questioning justified?
In When Talk Works, a collection of ethnographic essays analyzing the work of practicing mediators from widely different areas of practice, social psychologist Kenneth Kressel closely analyzed a child custody mediation conducted by Frances Butler, a highly successful family mediator. He noted with interest when Butler departed from the “received (mediation) canon” by starting out asking the parents a series of somewhat focused questions instead of open-endedly inviting each parent to provide his or her overall perspective. Why did she do this, Professor Kressel wanted to know. Butler’s response: “I think that most people in parenting conflict are totally incapable of explaining their situation in a rational way—together in the same room, on a first meeting.” Her solution, according to Kressel? “Structure and control.”28
p. 156Are there circumstances that warrant a more narrow or pointed inquiry at the start? Narrow initial questions may serve to calm parties in cases that are extremely emotionally charged. This may be the case especially when the parties demonstrate an inability to sit quietly during long narratives by the other side, constantly interrupt each other or otherwise act in an unruly fashion. Because responses to open-ended questions tend to take time, somewhat more directive questioning is prevalent and may be prudent in court-annexed settings where time is severely limited. More directive forms of initial questions may be welcomed in lawyered disputes where the parties think (at least at the outset) that all they want is an efficient settlement of a narrowly-defined problem, through mediator evaluation if necessary.
But one form of introductory question ought to be avoided regardless of the circumstances. The narrowest and most directive form of question is the leading question—one that suggests the answer (“So I assume you’ve brought this claim to get compensated for being denied the promotion?”). Even in mediations under substantial time pressure, such questions risk producing inaccurate responses and foreclosing potentially useful discussions and would almost never seem advisable given the goals of the opening stage of mediation.
In our experience, many newer and law-trained mediators tend to exercise too much control
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in their information gathering and revert to closed questions much too early, regardless of the circumstances. (Do any of the mediators you have seen on video thus far come to mind?) Our advice: resist the tendency to do so. By questioning directively, you are saying to the parties, “I know what this dispute is about and what the important topics are here.” You may be right about what would be important to a court (or perhaps to you if you were in the parties’ shoes), but at the outset of the mediation you will generally have little idea about what is really driving the dispute from the parties’ perspective. Only by asking the broadest questions possible will you elicit that information quickly.
§6.6.2 THE PARTIES’ OPENING STATEMENTS: WHO GETS TO SPEAK FIRST?
The mediator’s management of the process usually involves deciding the order in which each side will give its initial statement or narrative. This can affect disputants, because it’s hard to listen to a lengthy statement by the other side before getting a chance to speak for the first time oneself. In addition, there is some evidence that going first creates a rhetorical advantage: The first speaker gets to frame the dispute and decide the topics for discussion, with the second speaker often feeling as if she must respond to that narrative.29 But someone has to go first. Who?
Where Litigation Has Been Initiated or Threatened. In legal matters, where litigation has already been started or threatened, the decision is usually an easy one: It is customary and logical to begin with the party who initiated the claim. Most sophisticated litigants understand this, but many disputants will not. As the mediator, you can ease any potential feelings of unfairness (“Hey! Why does p. 157she get to go first?”) by simply explaining this custom: “It’s typical in these cases for the person who is making a claim to speak first. Mrs. Ramirez, I understand that you’re that person. Please take your time and tell us, from your perspective, why we are here.” This sequence can also be explained based on enhancing the mediator’s comprehension: “I will probably be better able to understand both of you if I learn first about the grievance that led to this lawsuit and then, Mr. Finkel, how you see the situation.”
Where One Side Seeks to Change the Status Quo. In some situations, it is more logical to begin with the person whose desire to change a longstanding situation is at the heart of the conflict—regardless of who the claimant is.
For example, where a father has threatened to take legal action to stop his wife from carrying out her sudden plan to relocate their four-year-old son from their home in Philadelphia to her parents’ home in Miami, the mediator’s need to understand the situation may suggest that the wife be invited to speak first—even if it was her husband who had requested the mediation or would be the plaintiff in any litigation: “Ms. Pena, your husband
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claims you have plans to leave next month and to take Alejandro with you to live in Florida. Your husband is concerned about this and arranged for our mediation center to set up this chance to talk before any court case is filed. It probably makes sense for all of us to hear from you first. Can you tell us about the situation, as you see it?”
Where Both Sides Jointly Seek Mediation. What about cases in which there is no litigation on the horizon and both parties have jointly initiated mediation? For example, suppose that two brothers who are 50-50 partners in a troubled printing ink company jointly seek to mediate their management deadlock in order to avoid a court proceeding. In such cases, the mediator has two options: arbitrarily pick someone to go first or let the parties decide themselves. Which shall the mediator choose?
In cases where the dispute dynamics seem “cool”—where, judging from their demeanor, both parties seem reasonably calm—it may be advantageous to let the parties decide themselves: “Charlie and Frank, you’ve jointly decided to try to resolve your business problems through mediation, and I commend you for that. Both of you will have uninterrupted time to get out the concerns that brought you here. Who would like to go first?” If the parties can agree on this procedural issue, it may also establish a positive momentum for the substantive discussions to follow.
But if either party seems tense or angry, it is probably best for the mediator to make a command decision herself, avoiding an unnecessary argument over procedure: “Charlie and Frank, you’ve jointly decided to try to resolve your business problems through mediation, and I commend you for that. Both of you will have uninterrupted time to get out the concerns that brought you here. Charlie, why don’t you go first? Frank, I’ve provided you with a notepad so that, while Charlie is speaking, you can jot down any thoughts that occur to you.”
If a Party Is Represented by Counsel, Who Speaks on Behalf of That Party? In many kinds of cases, it is common for one or both parties to be represented by an attorney or lay advocate. To whom should the mediator look when it comes time to ask a represented party to make an opening statement?
p. 158Some mediators and theorists seek to minimize the role of lawyers in mediation. They generally view lawyers as potential impediments to the process and state a preference that they take a back seat to their client. Mediators with such a view might ask each party to provide his or her own opening statement and instruct the attorneys that “this process is about the parties,” and that their role is to sit to the side and provide backup support.
Do you think this approach is realistic? Does your answer depend on the kind of dispute? If you were representing a client at a mediation and the mediator requested that you that you
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only talk within limited constraints, how would you feel? How might your client? If you are like many lawyers, you might fight back. As attorney Brendan Sullivan famously declared in the Iran-Contra hearings when instructed by a U.S. Senator that his client, Oliver North, would have to object to senators’ questions himself: “Sir, I am not a potted plant. I am here as a lawyer!”
Mindful of such concerns early in the process, when inviting a represented party’s opening statement we suggest looking generally in the direction of lawyer and client, and saying something like “Mrs. Peterson, you initiated this mediation and it probably makes sense for you to begin. I would be glad to hear from either you or your attorney.” In many cases, the lawyer will proceed to give the opening statement. (Even highly sophisticated and articulate clients often want and expect it, and many lawyers will want to be perceived by the client as their active advocate.) As the mediation unfolds, the mediator will ordinarily be able to find opportunities to involve the disputants more directly.30
Video Clip 6-I.
In the extract that follows, watch how one of the mediators in our premises liability case (he is mostly off-camera) invites the parties themselves to participate in setting out their views of things and how the plaintiff’s lawyer reacts to this request. Did the mediator respond appropriately to the lawyer’s stated concerns? Would you have handled this situation any differently?
§6.6.3 RESPONDING TO INITIAL PARTY NARRATIVES
If the first disputant provides a detailed or impassioned narrative in response to your opening invitation to speak, what should you do next? Tempting though it may be, asking follow-up questions is risky at this early stage. Remember that there are two (or more) disputants in this “interview,” not just one. The other side will be anxiously waiting for his turn and may be hypersensitive to any hint of favoritism. Time spent asking follow-up questions (especially detailed ones) of the first speaker may seem unfair to the other party. Better to say something like, “Thank you for sharing your perspectives, Mr. Gomez. I want to give Ms. Marshall an opportunity now to say how she sees things. After that, there will be plenty of opportunity for both of you to speak further.”
What If Your Opening Question/Invitation Produces a Limited Response? Sometimes disputants or their attorneys provide very limited opening statements in response to even the most open-ended invitations. There can be a variety of reasons for this. Some disputants may be distrustful of the mediation p. 159process or fearful of or reluctant to
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upset the other side. Some may be discomfited by the openness of a question or unsure about the boundaries of a proper or relevant response. Some people, for personal or cultural reasons, are uncomfortable being in the conversational limelight. Some attorneys, seeking to avoid predictable arguments and emotional exchanges or eager to start negotiating, prefer to shortcut this part of the process and to proceed to private caucuses as soon as possible; as a result, they provide cursory answers to even the most open- ended questions.
So what can you do if, having asked one side a question such as “Tell us from your perspective why we’re here,” the respondent says something like “Well, you’ve read the complaint, haven’t you? It’s all there. We’re suing for $75,000 in damages, plus our attorney’s fees. What do you want to know?”
The one thing we think you should not do if this happens is to revert immediately to closed questions. There are a number of less directive options. You can:
Ignore the attempt to provide a limited response and persist tactfully in seeking a more narrative one, emphasizing your own need for information. (“Of course I’ve carefully read your complaint and have a general sense of the legal claims at issue. But for me to be helpful here, I need to know more about how each of you here sees what happened, and what’s most important to you. So it would be very helpful if you could tell me in detail about the situation that brings us here, in your own words.”)
Emphasize each party’s need to learn more about the other side’s perspective. (“Mediation participants often think that they know what the other side is going to say before they even say it. But I have found that people in disputes often have misunderstandings about each other’s past conduct and intentions or their objectives going forward. It’s important for this process that each of you gets the opportunity to hear how the other side views the situation, above and beyond any technical legal claims or defenses you may have.”)
Use the information you have to ask focused but relatively open-ended questions. (“I have carefully read your complaint and see that you have claimed wrongful termination and are requesting lost wages, emotional distress damages and attorney’s fees. Perhaps we could start with your talking about your job history and the circumstances of your termination?”)
Use minimal prompts, followed by silence. “Tell us more about your claims” might work. In other situations, so might “uh-huh” or “go on.” By using silence, coupled with continued eye contact and attentive posture, you convey the message that you eagerly await (and expect) the speaker’s statements once she has gathered her thoughts. Most people are uncomfortable with silence and will fill in the “dead air.”
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Usually one or another of these approaches will cause people to speak more openly. If not, there may be some real impediment to their participation that needs to be explored (possibly in caucus) before proceeding further.
Disputants who feel strongly about their perspective and who have prepared for their participation in the mediation (or any court proceedings that may follow) often attempt— during or at the end of their opening statement—to show the mediator documents or photographs that “prove” their assertions or refute those of the other party. How should a mediator respond in such situations? We cover this topic in detail in Section 7.5.
p. 160Summarizing. However the parties’ opening presentations emerge, their conclusion presents an initial opportunity for the mediator to demonstrate understanding and develop rapport by synthesizing what has been said. (This can also be informative for a disputant who was busy preparing his own presentation or counter-arguments rather than really listening to the other party.) For example: “So, Mr. Muhammed, to summarize, you were hired as an account associate three years ago. You believe that you did everything that was asked of you and that your previous supervisor’s evaluations were quite positive. As you see it, things turned bad when Ms. Collins, the new supervisor, took over a year and a half ago. You feel that her evaluations were unfair from the beginning and did not reflect the quality of the work you did. You believe that your ethnicity was the reason for your termination. Since your termination, you have not found another job and you have not been sleeping well. You are suing for lost wages and emotional distress damages. Does that capture the basic situation as you see it?”
This task presents the neutral with a process choice: summarize each party’s opening immediately at its conclusion or wait until both sides have spoken to present two summaries back to back. What factors might argue for one approach versus the other? It also poses a decision as the content of a summary: What are the pros and cons of presenting a detailed as opposed to a more general recap? However this is accomplished, impartiality requires that if one side’s opening is summarized, the other party receive a summary that is comparable.
Note another important point about summarizing at this early stage in the process: The mediator’s summary must be faithful to—and not downplay or distort important details from —each participant’s just-concluded initial statement. To do otherwise may risk leaving the speaker feeling misunderstood and the mediator possibly appearing manipulative. Given the tendency of disputants to be at their most adversarial at the outset, it can sometimes be a challenging task for the mediator to accurately summarize what the participants have said without unnecessarily fanning the flames of the dispute or appearing to credit positions that are extreme and perhaps unreasonable.
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§6.7 THROUGHOUT THE PROCESS: THE CRITICAL IMPORTANCE OF GOOD LISTENING
On the cable television program “Inside the Actor’s Studio,” host James Lipton often asks his guests the following question: “When working with other actors, how important is good listening?” His guests, from Kevin Kline to Meryl Streep to Matthew Broderick, invariably give a version of the following answer: “It’s the most important thing. It’s everything!”
Ask mediators the same question, and you will likely get the same answer.
Good listening sounds easy, but it isn’t. Listening effectively means listening and observing with a “quiet mind”31—with minimal distraction caused by your own reactions or concerns. (“There were too many ‘ums’ and ‘ahs’ in my last question.” “I don’t believe that answer.” “What should I ask next?” “Is that his real hair color?”)
p. 161Listening well means paying careful attention; maintaining good eye contact, an open and attentive posture and an attitude of focus; and having patience and curiosity without (at least for now) judging. It means being “in the moment,”32 working hard to understand the situation as the speaker sees it. Perhaps because we are so very busy and tend to value talking more than listening, Americans in general are not good listeners.33 (If you want to test yourself in this realm, you might try keeping a running count of how many times your mind wanders during your next class or phone call with a friend!)
Kinds of Listening in Mediation. Good listening in mediation is all the more challenging because, as the process unfolds, effective mediators must listen and gather information for many different purposes. We will discuss this subject in greater detail in Chapter 7. Here we emphasize six particularly critical kinds of listening in the opening stage of mediation:
For Content. Like all interviewers, mediators must attend carefully to the factual content of the parties’ narratives, with an ear attuned to what may be important to explore later in more detail. (“When did your neighbor put up the fence?” “How many cabinets have been delivered and installed?” “What was the last offer the defendant made?”)
For Empathy. Effective mediators must also listen in a way that demonstrates empathy—a nonjudgmental understanding of each party’s view of things.34 This requires that the mediator put herself in a “believing” mode35 in which she tries to put all skepticism out of her mind in order to understand and accept (at least for the moment) each person’s perspectives. To the extent that those perspectives include strong emotions, listening for empathy requires paying close attention to those feelings, both those that are expressed verbally and those that are revealed
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nonverbally.
For Needs, Interests, Goals and Priorities. Mediators must listen carefully to try to identify the parties’ underlying interests, to get at the needs that explain what’s really going on: why disputants are saying what they are saying or taking the positions they are taking. (“She says she won’t agree to let the kids visit dad during the week. Hmmm . . . I wonder if that’s because she’s concerned that they won’t keep up with their homework. . . .”)
For Ultimate Negotiation Issues. Mediators must listen carefully in order to identify the subjects that may have to be negotiated if the matter is to be p. 162resolved, and that will form the agenda for the bargaining/problem-solving phase of the process. (“So it seems that one topic is what kind of time-sharing plan will work for both of you and the kids. Might another be how you will transport them from one household to the other?”)
For Evaluation. Listening for evaluation means listening skeptically and doubtfully, with an eye to the possibility of providing dispassionate feedback later in the process.36 It is the opposite of nonjudgmental, empathic listening. In legal cases, it can involve considering how each side’s factual account and the admissible evidence line up against governing legal or other applicable norms in order to assess the parties’ competing claims. It also means actively indulging one’s doubts about how the parties’ ideas and proposed solutions stack up against external realities (“I understand why you’re making that offer, but can you borrow enough to make it work?”) Listening for evaluation comes naturally to most lawyer-mediators and can pay off in helping parties see the conflict more objectively in the later stages of mediation. But because it can interfere with other kinds of attention, it must be kept within proper boundaries in the early going.
For Diagnosis. Finally, as Chapter 2 suggests, mediators listen for the purpose of discerning obstacles to settlement. Is a key barrier to negotiated resolution a lack of information on the part of one or more parties? Widely differing and overconfident assessments about the likely trial outcome? A counterproductive negotiating style? A misperception that the parties’ interests are diametrically opposed? Listening for diagnosis helps the mediator determine what questions to ask and what statements to make throughout the mediation process and can often produce surprising breakthroughs in the parties’ conflict.
Video Clip 6-J.
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As an example of attempting to listen for diagnosis, watch the following extract from our child custody case, Fitzgerald v. Fitzgerald. (It may be helpful to review the summary of this case at the end of Chapter 1.) Based on this brief exchange, what are possible barriers to resolution in this dispute?
As you can see, mediators are concerned about information that goes well beyond the facts and evidence that support the parties’ contentions. (Indeed, the deepest listening is often about what is not said.) Not all mediators listen on all these levels; the extent to which they do will depend on how they define their role, the nature of the dispute, the extent to which the parties—and not just their representatives—speak, and the setting in which the mediation is occurring.
These multiple modes of listening will continue well beyond the early stages of the mediation we are discussing here. They will bear keeping in mind as we chronologically dissect the mediation process.
§6.8 A BRIEF NOTE ON NOTE-TAKING
While we are on the topic of listening, it makes sense to talk about note-taking as well, because the two subjects go hand in hand.
p. 163Note-taking in mediation, as in other professional interviewing, is a necessary evil, with pros and cons that will be obvious to you. As in a lecture course, good note-taking in mediation can improve your attention in important ways and make it more likely that you will process and later recall important information. In mediation, it can also be a sign to the participants that you are considering their competing presentations with “procedural care.”
But a mediation is not a lecture course. It is a setting in which you are also trying to establish a positive connection with the parties, who may be under stress. Note-taking interferes with eye contact and rapport-building. It may prevent you from attending to important nonverbal cues. It can also bias the presentation of information: Taking a lot of notes can be inherently reinforcing to the speaker (possibly on topics that later turn out to be unimportant) or conversely may distract the speaker from her “flow” because of anxiety about all that information you are scribbling down.
So how does a mediator maximize the advantages of note-taking while minimizing its disadvantages? While note-taking is a highly individual practice, here are a few suggestions:
Suggestions for Note-Taking
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Ask permission to take notes, explain your reasoning, and reiterate their confidential nature. “Is it okay if I take notes? This will help me do a better job by helping me remember the key details.” “And no need to worry about what I write down: it’s all confidential.”37
Take the fewest notes possible. Early on, write down only the essential information in the case: for example, the parties’ names, a chronology of key dates, essential facts and potential negotiating issues. Write down key words, noting topics that you want to come back to later. (Later on, during negotiations, record specific offers that are mentioned and possible settlement ideas that occur to you.) Use any form of shorthand or abbreviation that works for you. Less is more; your memory for the main points is probably better than you think. And you can always ask a participant to repeat or clarify details your notes leave out.
Experiment with preselected categories of information about which you will keep notes. If your note-taking is limited to just the facts, you are probably missing the boat. As the parties speak, try to take deliberate note of their possible underlying feelings and interests; any dubious aspects of their presentations; the actual and potential negotiating topics they raise; and any barriers to resolution you can (at least tentatively) diagnose. Experiment with different ways of recording this information that work for you.
Try to maintain eye contact during your note-taking. This is self-explanatory but not so easy to do. You don’t want to have your head buried in your notes rather than being attentive to the people in the room.
Take notes evenhandedly during each party’s presentations. Balance is necessary in order to be perceived as impartial.
p. 164Make sure your note-taking is as unobtrusive as it can be. Does this mean using a pad and paper rather than a laptop computer? Just the reverse? What factors explain your preference? Should the mediator use an electronic device if the parties have been asked to turn off theirs?
In Chapter 4, we discussed co-mediation as an alternative to working alone. Might having a partner help alleviate some of the challenges of deep listening and note-taking? If so, how?
§6.9 ENCOURAGING AN UNSTRUCTURED CONVERSATION: THE PROCESS OF “EXCHANGE”
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The last part of the opening stage of the mediation, utilized by mediators who seek to encourage open communication between the parties, is a process of “exchange,” in which the mediator gives the parties an opportunity, for at least a few minutes, to respond to each other’s initial presentations and arguments in an unstructured way, without imposing any kind of topical agenda on them.38
At first blush, this seems as simple as pie. When both parties have completed their opening statements, the mediator can turn to the first speaker and say something like, “OK, Mr. Smith, both you and Ms. Jones have had an opportunity to set out your perspectives. Would you like to respond now to what Ms. Jones has just said?” When Mr. Smith is done, the mediator can turn to Ms. Jones and say, “Ms. Jones, would you care to respond to that?” This kind of back and forth can go on, without interrupting or questioning, for as long as the mediator thinks it is productive.
Video Clip 6-K.
Watch how one of our mediators orchestrates and encourages the exchange process in Wilson v. DiLorenzo. What do you think of this approach?
The Benefits from an Exchange. Not all mediators utilize an exchange process. However, if handled well, it can serve a number of useful purposes:
First, open exchange continues the process of non-directive information gathering, signaling to the parties, “This is your dispute, and you are encouraged to talk about whatever is important to you.”
Second, whereas the parties’ opening statements are likely to be rehearsed or even scripted, their subsequent exchanges will generally be spontaneous and often raw and impassioned. As a result, the mediator can learn what is fueling the conflict and more about the parties’ real interests and needs—what is p. 165really important to them and is driving their stance. This can be critical both in diagnosing barriers to settlement and later in coming up with ideas for resolution.
Third, during such an exchange, additional negotiation issues often surface, going beyond the topics the parties identified in their (often rehearsed and, in lawsuits, narrow) opening statements.
Fourth, if managed well, exchange can be educational—a chance for the participants to communicate more effectively than in the past and to begin to understand each other’s perspectives. But to accomplish this, the mediator must often play the role of
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conversation “traffic cop,” intervening to correct distortions and setting and enforcing ground rules to ensure that expressions of strong feeling are stated productively, and that each side listens to the other even if the emotional temperature in the room is rising.
The Risks of an Exchange. Because it is unstructured, it is during this stage of the process that disputants are most likely to express strong feelings of resentment, mistrust and anger. If a mediator does not exercise strong management skills, an unstructured exchange process can sometimes spiral out of control, leading to angry, chaotic discussions and even the threat of one side walking out. Therefore, if the disputants have exhibited great hostility during their opening statements, speaking over each other or otherwise acting rudely, it may be preferable to skip this stage and to proceed directly to a more structured effort at expanding information, in which the mediator plays a more active role. (We discuss this in detail in Chapter 7.)
§6.10 KEY COMMUNICATION ENHANCING INTERVENTIONS
While it is the parties who must do the bulk of the talking in this opening stage, it does not follow that the mediator is a silent or passive onlooker. The challenge for the neutral is to have the talks begin without ending prematurely and to instill a sense of investment in, and optimism about, what the mediator and the process can offer. In this section, we explore techniques that are useful in encouraging constructive communication and “connecting” with participants during the initial stages of the mediation and throughout the entire process:
Active Listening
Pointing Out Commonalities
Productive Reframing
Clarifying Meaning
Coaching People to Express Their Anger Productively
Enforcing Ground Rules
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§6.10.1 ESTABLISH EMPATHY AND ENCOURAGE COMMUNICATION
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THROUGH ACTIVE LISTENING
For those in the helping professions, the skill of active (also known as empathic or reflective) listening—paraphrasing back to the speaker the essential content, feelings or interests expressed in the speaker’s statement—is an essential one to master.39 Mediation is no exception. When a mediator is able to distill and reflect—without parroting—the key elements of a party’s statement back to that speaker, at least five important objectives are achieved:
The speaker knows that what he said has registered and has been understood. The feeling that “I am really being listened to” is intrinsically rewarding for all human beings. When a person feels listened to, he is more likely to trust a person in a helping role and to accept his or her guidance.
The speaker knows that his ideas and feelings are accepted (at least for the moment) and that he is not being judged. Effective active listening conveys the message that “I understand what you are saying and feeling. It is your perspective or viewpoint that matters, not mine.”
On hearing what the mediator thinks he has said, the speaker can verify or correct that understanding. This feedback process often encourages further elaboration and helps the speaker better understand and express his own feelings and motivations.
Active listening can enable the other party in the mediation to better hear (and perhaps begin to empathize with) the speaker’s perspective. Hearing a disinterested neutral provide the opponent with an accepting message can lend legitimacy to that person’s previously discredited position or feelings.
By working to identify the core interests and feelings embodied in participants’ statements, the mediator is helped to understand the less tangible and often unspoken aspects of a dispute that may hold the key to devising and improving on potential solutions later on.
Active listening statements embody what the speaker—not the mediator—thinks and feels about the situation, with which the mediator is expressing empathy or understanding, not sympathy or agreement. (The latter could jeopardize the parties’ perception of the mediator’s impartiality.) Starting the statement with “You” can help ensure this; useful stems include “It sounds as if you. . .” or “So you’re saying that. . .” or “You’re angry about. . .” or “What’s important to you is that. . .” (It is generally better to avoid using the same formulations over and over.) If the mediator is not certain whether her statement has captured the speaker’s meaning correctly or completely, she can add a verifying question such as “Is that right?” or “Am I understanding you correctly?”40 In addition to gaining
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clarity, such verifying questions show respect for the speaker by demonstrating a p. 167desire to get her meaning right. Finally, because active listening is aimed (in part) at conveying empathy, the mediator should endeavor to employ this tool evenhandedly with both parties.
Three Types of Active Listening. As we have said, active listening responses can reflect the content, feelings or interests underlying the speaker’s statement. Suppose that the husband participating in a difficult divorce mediation says, with feeling: “Ever since our separation, I’ve been completely unable to concentrate at my job. It’s been going on now for over six months now. He hasn’t said anything yet, but I can tell that my boss is starting to lose patience with me!” A mediator wanting to reflect the content of the husband’s statement might say, “So your separation has been seriously affecting your performance at work.” A mediator trying to reflect the feelings embodied in the statement might say something like “So it sounds as if this whole thing, the separation and all, has been really quite stressful for you.” A mediator wanting to reflect (and test out for diagnostic purposes) the interests underlying the statement might say “So would I be correct in assuming that you’re worried about job security and being the kind of family provider you want to be going forward?” And a comprehensive reflective response might include all three components.
Challenges in Active Listening. Beginning mediators (and some experienced ones too) often have difficulty learning to use and master active listening. Some neutrals are not wholly comfortable when dealing with or even identifying emotions. They may come from families or cultures that did not acknowledge or have names for certain feelings. They may be frightened of exacerbating others’ strong emotions through their questions and statements. Can a mediator to whom “feelings talk” does not come naturally overcome these inhibitions? This critical skill can indeed be learned, by reading about the technique and practicing it regularly with family members and friends. (And make no mistake: As you improve, your friends and loved ones are likely to notice and feel more connected to you.)
How frequently should one use this intervention in mediation before it begins to seem forced and loses its effectiveness? In our experience, a little carefully chosen and well- timed active listening generally goes a long way in mediation, especially when focused on unpacking psychological aspects of the conflict that seem most salient or highly charged to the disputants. If selectively and artfully done, it is a powerful communications tool. If overdone, it can appear manipulative and false.
Sometimes, challenges in the use of active listening are presented by the parties themselves. For example, while most participants convey at least a few perceptions or feelings with which one can empathize, in rare situations a party may come across as so unrealistic or unreasonable that it may feel false to appear to validate (even momentarily) their perspective. In other situations, use of this communications tool is challenging
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because this kind of communication is resisted by one or more of the participants. (Again, this may be a product of an individual’s background or his or her desire to deal only with “facts” and “rights.”) Should the neutral steer clear of feelings in such situations? If not, how can such inhibitions be addressed and overcome?
Video Clip 6-L (1).
Video Clip 6-L (2).
p. 168Active Listening Examples. Here are two examples of active listening in action. The first involves one of our child custody mediators working with Jane Fitzgerald, the mother. The second involves one of our consumer mediators working with Bernice Wilson, the homeowner. Do you think these examples are effective? If so, what makes them so? If not, why?
§6.10.2 DECREASE PERCEPTUAL BARRIERS BY POINTING OUT COMMONALITIES
Recall from our discussion in Chapter 2 how people in conflict tend to exaggerate their differences, denying their own contributions to a dispute, seeing the other side wholly at fault and assuming that their interests are diametrically opposed. These perceptions are likely to be most pronounced in the beginning stages of the mediation, because the parties have been mentally rehearsing their arguments and gearing up for a fight. A mediator can moderate this dynamic and improve the climate for eventual negotiations by pointing out agreements and commonalities that come to light during the opening stage.
Pointing Out Common Goals and Interests. As we discussed in Chapter 2, even people locked in bitter conflict often have shared, or at least compatible, interests. The mediator can periodically remind the disputants of these shared interests. In our Fitzgerald child custody mediation, one of the mediators made statements like, “You’re both concerned about having a relationship with the children” and “You’re both interested in developing a plan for an ongoing relationship with the children that does not depend on somebody else imposing a decision.” In a similar vein, another asked Bob and Jane if either had brought photographs of the kids to the mediation. (They hadn’t.) The basic message imparted was “Keep all that you share in mind as you think about this current disagreement.”
Pointing Out Positive Attributes and Relationships. In cases where the parties have had a relationship, it is sometimes useful to ask them to acknowledge positive aspects of that relationship or of the other person. For example, if a landlord accuses a long-term
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tenant of scratching the living room floor as the reason for refusing to return a security deposit (an assertion the tenant vigorously disputes), the mediator can ask the landlord whether the tenant moved out when she said she would, whether all of her rental payments were made on time and whether the rest of the apartment was in good condition. Statements like “It sounds as if you had a long history of working together” or “While you dispute some of her fees here, you do view her as an honest and competent accountant” can sometimes help reduce the tension of a difficult conflict.
Pointing Out Common Predicaments. In a pinch, where the participants seem to agree on nothing at all, the mediator can point out their common predicament. Statements like, “Boy, this is a difficult situation for both of you” can create a sense of a shared problem needing resolution. Indeed, in legal disputes, it is the shared uncertainty about how a court might resolve a contested claim that motivates many settlements. We revisit this topic in later chapters.
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§6.10.3 REDUCE PERCEPTUAL DISTORTIONS BY CLARIFYING MEANING
We saw in Chapter 2 that when people are in conflict and their strong emotions are engaged, they may be unable to listen to their counterparts without distortion. Consumed with their own thoughts and feelings, they may mishear what the other person says or misconstrue their conduct and intentions. When this occurs, effective mediators intervene promptly to reduce distortions and clarify meaning.
Clarifying the Other Side’s Statements. In one of our child custody mediations, Bob said, “In terms of discipline. . . when I came home and found everything in chaos, that’s very typical. You know, what she calls ‘relaxed,’ I call ‘lax.’ I mean you can take that too far. Relaxed is great, but lax is irresponsible when you are raising two small children. I think that Megan would be much more prepared to go to school and start succeeding in school right away had she had the cooperation in both parents in working on her verbal skills and encouraging her to read out loud more and to speak more and articulate things.”
Suppose, in response to this, Jane had blurted out, “You see? He thinks that Megan’s speech delays are all my fault!” After such an exchange, the mediator might inject, “Is that what you are saying, Bob? Are you saying that Jane is solely to blame for Megan’s speech delays?” to which Bob might answer, “Of course not. What I mean is that we both need to cooperate in treating this as a serious matter and get her the professional attention she needs.” If the mediator thinks that Jane still doesn’t “get” it, he can ask her for her understanding of Bob’s message: “OK, Jane; what is Bob saying?”
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Clarifying the Other Side’s Intentions. In our consumer mediation, Bernice Wilson was furious that none of her calls about construction delays to Frank DiLorenzo, the contractor, were ever returned. She felt totally disrespected. She said, “I went through making fifty million phone calls because, see, the thing that really kills me is that had my check bounced, had the money not been there, you better believe I would have received a phone call. Had my answering machine not worked and the check bounced, they would have been sending me a letter in the mail. It would have been a certified letter in the mail. It could have been a sheriff at my door, could have been anything. . . . I am just still so upset.”
A mediator who understood the feelings behind Bernice’s statement might say: “So it sounds as if you felt like Frank just blew you off.” If Bernice responded “Yes!” the mediator could turn to Frank and ask, “Was that your intention, Frank?” (to which Frank might answer, for example, that he was stressed with too many jobs, that he didn’t mean any disrespect and that he’s sorry Bernice’s job got lost in the shuffle). We spoke in Chapter 2 about the tendency of human beings to attribute bad motives to those whose actions hurt us.41 Intervening promptly to disentangle the impact of an actor’s conduct from his or her intent can overcome this bias and greatly improve the mediation climate.42
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§6.10.4 REDUCE THE STING OF ANGRY, NEGATIVE STATEMENTS BY “PRODUCTIVE REFRAMING”
Reframing is an established counseling technique therapists use to help their patients see themselves in new, more constructive ways. A patient who thinks of himself as “stubborn” is encouraged to view himself as “valuing autonomy.” A patient who sees herself as “perpetually lazy” is helped to see that if she lacks energy and drive, it is only in settings that threaten her self-confidence, not most of the time. The purpose of reframing is to reduce patients’ negative generalizations about themselves and to redirect their focus in more positive directions.43
In mediation, reframing is an important tool that can be used to reduce the sting of disputants’ hostile or otherwise unproductive statements about each other or the situation and to redirect how they see things. Mediators cannot prevent persons in the heat of conflict from making such statements, but they can try to minimize the destructive aspects of such statements while preserving their positive aspects. How?44
Reframing a Positional Statement as an Interest-Based Statement. Suppose in our earlier dog bite case, the plaintiff said, “My son already got bitten by their dog once and was seriously injured. We won’t be satisfied unless they get rid of the mangy beast.” The mediator could reframe this by saying, “So your primary concern here is to ensure your
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son’s and your family’s physical safety?” This reframing removes both the possibly extreme (and impasse-threatening) demand (“get rid of”) and the belligerent characterization of the dog (“a mangy beast”), and focuses instead on the speaker’s underlying interest in security.
Reframing a Judgment Statement as a Problem Statement. Suppose a disputant says, “Why should I trust her to pay me anything? She already stiffed me once. I wouldn’t believe anything this woman tells me!” The mediator could reframe this by saying, “So from your perspective any acceptable resolution would have to contain a way of protecting you in the event of nonpayment?” This removes the blame (“She stiffed me!”) and judgments about trust and believability from the speaker’s statement and focuses instead on the problem to be solved—the speaker’s need to be reassured that any settlement he agrees to has “teeth.”
Reframing a Statement About the Past as a Shared Problem About the Future. Suppose that in our child custody dispute Jane said, “I can’t believe what Bob said about me in front of the kids when he brought them over last week. He said that he hoped at least that I had cleaned up the kitchen this month so that the kids wouldn’t have to eat like pigs. Can you believe that?” to which Bob responded, “That’s nothing compared to your telling them I’m a wife-beater!” The mediator could reframe this by saying, “So one of the issues we have to discuss is how you’ll talk about each other in the presence of your children.” This reframing shifts the focus from the past to the future and recasts each side’s accusation as a mutual problem to be jointly solved.
p. 171Reframing an Individual Problem as a Shared Problem. Suppose in our child custody case Bob said, “I want the kids to live with me and my parents. They can visit Jane on weekends.” Jane says, “I’m Megan and Ryan’s mother! The kids should be with me. They can visit Bob on weekends.” The mediator could reframe this exchange by saying, “Both of you are very concerned about maintaining a strong relationship with your children and having quality time with them. I cannot say that about all the couples I meet.” This reframing converts individual positions into statements of a shared problem (and reframes positions as interests).
Potential Risks in Reframing. Like active listening, productive reframing has the mediator playing back or reflecting what a speaker has said, but in different words. But reframing is different from active listening in that the responder deliberately tweaks or “massages” the original message to make it more positive-sounding. By finding something productive in even the most hostile or blaming statements, the mediator tries to lower the emotional temperature in the room.
But note the risks in doing this: If the mediator appears to be a Pollyanna about conflict or overly manipulative, seeking to sweep strong disagreements under the rug or pretending
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that they don’t exist, this can seem disrespectful to angry disputants. If in the process of reframing a message, the mediator distorts it, this may infuriate the speaker. Reframing is thus a technique that requires some subtlety (and practice) to ensure that, while reducing the potential sting of a speaker’s message, it also retains its essence. Keeping this in mind, do any of the above examples seem disingenuous to you? Would you have confidence that all of them would be effective?
Note also that some mediators—especially those with a transformative orientation—oppose attempting to soften or dilute conflict in this way. According to this view, intervening to defuse emotional exchanges is inconsistent with the disputants’ decision making about how they wish to talk about their conflict—a matter that should be left within the control of the parties.45 Do you agree with this critique?
Summarizing vs. Active Listening vs. Reframing
The father of a six-year old has just gotten out of prison for tax evasion and has petitioned the court to grant him overnight custody of his son every other weekend. In her opening statement in mediation, the mother exclaims: “Where were you when he was born? Denying paternity. Have I seen a nickel in child support since then? You’re a tax cheat and a deadbeat. And now that you’re living with that junkie and floozie, no way will he be at your house. You can see him after you pay your arrears and only if you are supervised.”
A summary of the mother’s initial position would accurately capture its factual content: “You oppose his petition because you are concerned about the influence of a live-in girlfriend who you claim abuses drugs. You doubt his real interest, as he originally p. 172denied that he is the boy’s father and because he has not paid any child support. You would be willing to permit supervised visits at a neutral location once he is current in his support obligations.”
A comprehensive active listening response might reflect—but not parrot or repeat—the essence of its factual, emotional and interest-based content: “So you are angry about how you have been treated all these years, skeptical about his true interest in your son based on his history with the boy, and worried about the influence presented by his current living arrangements.”
A reframing of her statement would attempt to recast some of its more accusatory, potentially toxic components into more positive language and concepts: “You want to insure that custodial time he has is safe and appropriate for your son and that he evidences genuine fatherly interest in all ways, including financial.”
§6.10.5 REDUCE TENSION BY COACHING PEOPLE TO EXPRESS THEIR ANGER PRODUCTIVELY
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Effective mediators also assist mediation participants in expressing their feelings constructively, not destructively. As the mediation scholar Keith Allred has written,
It has become popular, even in works that receive considerable attention in scholarly circles, to advise people to “vent” their anger. This advice draws on a metaphor that compares anger to a gas whose pressure in a sealed vessel is building and can only be released by releasing it. . . . [But] venting is. . . an exercise in rehearsing the very attributions that arouse anger in the first place. As a consequence, rather than giving psychological relief from anger, research indicates that venting actually makes the individuals even angrier.46
It can be tempting to allow extended displays of strong emotion early in the process—in part because the parties seem to need to get things off their chests and because in their unrehearsed spontaneity they may reveal a great deal about their true concerns. But some expressions of feeling are more destructive than constructive. Given this tension, what is the mediator’s optimal strategy when it comes to emotional displays, especially in the opening stage of a mediation?
Empirical studies suggest that mediators are most effective in resolving disputes when they neither squelch the expression of strong feelings nor let the expression of strong feelings get out of hand.47 They allow disputants to talk to p. 173each other long and freely enough to permit them to express their feelings fully but do not let exchanges continue when the discussions begin to get hostile and polarized.48 They are able to discriminate between constructive and destructive communication patterns and, during periods of increased conflict intensity, intervene more frequently in order to moderate the exchange.49 But note an obvious precondition: The mediator must be “present” at such moments, neither drawn into nor thrown by the participants’ displays of strong feeling.
Encourage “I” Statements. One way to help mediation participants express their anger productively is by helping them turn angry “you” statements into more productive “I” statements. A psychologist of aggression explains it this way:
[There is] an important distinction between verbal aggression and talking about one’s feelings. When a person attacks someone verbally (for example, when he curses “you bitch,” or screams “I’ll kill you”. . .) he provides aggressive stimuli to himself and his listeners [that] can evoke further aggressive reactions. However, if he merely describes his own emotion (saying, for example, “I’m boiling mad”). . . [this] can be informative and even beneficial. You let the other person know how he has affected you, and this might cause him to make amends or change his behavior. You give him cognitive feedback so that he is less likely to hurt you inadvertently again.50
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Video Clip 6-M.
A powerful illustration of an “I statement” intervention occurred in one of our child custody mediations. By asking Jane to speak in “I” rather than “you” statements, the mediator helped move the conversation from one of recrimination and blame to one in which Jane was able to communicate her deepest needs to Bob.
§6.10.6 ENSURE BALANCE BY ENFORCING GROUND RULES
While intervening to maximize positive communications in these ways, the mediator must also exert control over the process so that it does not get out of hand, with one side dominating the discussion or intimidating the other, or with both sides engaging in downward, escalating expressions of hostility. One way to do this is to ensure balance by establishing (or restating)—and enforcing—ground rules.
As we discussed in §6.2, mediators often ask the parties to agree at the outset to abide by rules such as not interrupting each other, calling each other names or engaging in personal attacks. But even if ground rules are stated and agreed to at the beginning of the process, emotional parties may engage in destructive behaviors nonetheless. Being reminded of the agreed-upon rules is usually helpful in gaining compliance from parties who have strayed from their earlier commitments.
But note: If good mediation includes allowing or even encouraging a certain amount of heated exchange early in the process, what does this say about establishing “rules” at the beginning of the process? Is there a danger that stating p. 174ground rules at the outset may appear condescending to the participants? Is it worth that risk to try to preempt disruptive behavior before it occurs? Or would it be preferable to forego setting such rules until they become necessary, in order to avoid perceived non-enforcement and to preserve the mediator’s authority?
Video Clip 6-N (1)
Video Clip 6-N (2)
Video Clip 6-N (3)
Dealing with Strong Feelings. Now watch and critique four different mediators’ attempts
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to deal with Bob and Jane Fitzgerald’s expressions of strong hurt and anger in their child custody mediation. As you observe these extracts, consider: Did these mediators exert enough control over the parties’ expression of feelings? Too much control? How would you characterize their different approaches to displays of strong emotion? Which of the mediator’s approaches do you think was most effective? Least effective? Why? Are there things you would have done or said differently as the mediator?
§6.11 THE CHALLENGES OF MULTI-TASKING IN THE OPENING STAGE OF MEDIATION
We have covered only the first stage of the mediation, in which the mediator opens the proceedings and then moderates a process in which the parties present their initial perspectives. It all may seem pretty straightforward, with the mediator appearing to play a largely passive role.
But nothing could be further from the truth. Especially when they first begin mediating, mediators generally find this opening stage very complex and challenging, because there are so many potentially conflicting mental tasks to juggle, both while introducing the process themselves and then when the parties are talking. In the first stage of the process, the neutral must endeavor to:
develop trust, rapport and an appropriate level of authority;
obtain participant “buy-in”;
listen for facts, feelings, interests and possible barriers to settlement;
understand each party’s perspective so as to be able to listen actively;
answer participants’ questions;
assess the appropriateness of the case for mediation and the readiness of the parties to mediate;
decide what notes to take;
think about what to ask next;
plan to summarize as appropriate;
reframe where appropriate;
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decide how much venting to allow and intervening to manage destructive modes of communication;
look for and note weaknesses in, or alternatives to, the parties’ perspectives or legal positions in preparation for possible later persuasive efforts; and
p. 175be aware of his or her own biases and keep them in check.
To an outside observer of this stage of the process, it may seem as if mediators are not doing much. But from the inside, things feel very different.
In our experience, the challenges posed by this multi-tasking, especially in heated disputes, contribute to two common and problematic mediator temptations—to move from joint session into caucus prematurely and to begin negotiations too soon. Both are worth mentioning briefly before we move on.
Premature Caucusing. Once the initial joint session has commenced,51 beginning (and some efficiency-driven) mediators often feel the urge to separate the parties too soon. Some cannot wait to adjourn to private sessions in order to seek information that is not being revealed by the parties. Others want to separate the parties at the slightest expression of anger, concerned that they will not be able to manage greater displays of emotion if they occur. (Lawyers who want to avoid “wasting time” often push mediators in this direction as well.) But remember: It is often the exchange of strong views and feelings that makes negotiation possible by allowing participants to let go of feelings they have been storing up for a long time.
The model of mediation that we put forward advocates keeping the participants together in face-to-face meetings for as long as can be productive. The full humanizing potential of mediation—in which the parties talk to each other, express their feelings, understand their differing perspectives on the conflict, hear the impact of their own actions on the other person and work jointly to resolve the problem—cannot be achieved if they are separated too soon. Data from a recent empirical study of court-connected, non-commercial mediation in Maryland suggests a related benefit of this approach: The more time the participants spend in caucus, the lower the likelihood that they will express post-mediation satisfaction with the process and the result.52 So, even though we greatly value the private caucus, our advice is: Except in rare circumstances where the temperature is rising and you cannot get control of the room, keep the parties together until your (or their) ability to learn useful information has been exhausted.53
Premature Problem-Solving and Negotiation. A related tendency of beginning mediators is to assume mistakenly that the parties’ opening statements and the unstructured exchange that may have followed have revealed most, if not all, of the information needed
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to begin resolving the dispute. As a result, newer mediators, as well as those overly focused on efficiency, often want to move directly from the opening stage to negotiating an end to the problem that brought the participants into mediation. (This is a step that is sometimes also urged by parties or their lawyers, when they have a narrow view of the problem, a competitive bargaining orientation or want to avoid a lengthy proceeding.)
p. 176But developing sufficient information to yield a settlement (never mind an optimal one) can take a lot more time and effort than most beginning mediators imagine. It’s like peeling an onion: For each layer you peel off, there are usually at least several more layers underneath. In general, until the mediator understands more about the background of the conflict, how the parties feel about it and what they truly need, she cannot productively orchestrate a process of problem-solving and negotiation—at least not one that will leave the parties satisfied. The opening stage of the mediation is therefore just the beginning of learning information that will be needed if a resolution is to be achieved.
REVIEW PROBLEMS
Skills Exercise 1: Active Listening
Please watch the following video clips. Imagine that you are the mediator. Immediately after watching each clip, quickly write down (or dictate into your cell phone) the words you would say if you wanted to provide an active listening response to the speaker (or speakers). Please also be prepared to discuss whether an active listening response might not be desirable or called for in any of these clips (and why).
6-TM-3 (2) 6-TM-3 (3)
6-TM-3 (4)
Skills Exercise 2: Productive Reframing
Imagine you are the mediator in the following clip from our Fitzgerald custody dispute. Immediately after watching the clip, quickly write down (or dictate) the words you would use if you wanted to reframe what each parent had said into language that could be more productive for the mediation effort.
6-TM-4 (2)
Role Play Problem
You are assigned to mediate a probate court dispute in which an adult son and daughter are challenging the final will and testament of their recently deceased 87-year-old father.
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(Their mother, to whom he had been married for nearly sixty years, predeceased him by ten years.) Both sides are represented by counsel. Based on reviewing the parties’ court submissions to date, you have learned the following background:
Over the past five years, the son’s and daughter’s relationship to their father was largely limited to phone calls because they live in distant states. In that time, the son made only two visits home; the daughter, three.
Shortly after his funeral, the children were extremely upset to learn that their father had revised his will shortly before his death and left the entirety of the p. 177estate to a long- time neighbor who had become his “girlfriend” about a year before he died. The will submitted for probate cited his gratitude for her “love, care and companionship.” The son and daughter contend that the man’s failing physical health and the onset of dementia had led them to hire private nurses for him who had provided his real care and who would testify that, while the woman spent much time with the old man, he was very gullible, often confused, and that the “girlfriend” would routinely make jokes about the father’s frailty while on the phone with other friends. The girlfriend denies any improper conduct.
Under state law, if the will is set aside, which a court can order only on expert-supported proof of the father’s mental incompetence or some undue (wrongful) influence on him, the children will inherit everything. The estate, including the residential home, has a current value of approximately $700,000.
On arriving at the courthouse mediation program with her clients, the children’s lawyer introduces herself and asks to meet with you privately. After acknowledging that many mediations start “with everyone in the room” she asks that, “in this case, we dispense with that” and that the mediation move into caucuses immediately to see if “it even makes sense for us to continue today.” You believe that the odds of a settlement will be greatly enhanced by the parties’ face-to-face participation and interaction.
How will you handle the lawyer’s request? What, specifically, will you say? To whom? Be prepared to role play this problem as mediator in class.
My Notes
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