A good mediator must be a good listener. What happens when one feels s/he is being heard? William Ury, mediator guru, sums it all up in one sentence: “When you listen to someone, it’s the most profound act of respect.” Many complain in life that they are not “being heard”. It is often no wonder; we are looking at i-phones, computer screens, and breaking news on our tablets. What does that do for one’s feeling of self-worth and esteem. A good mediator listens. If successful, she can get the parties to listen to each other. Once respect enters the equation, all becomes possible. Win-Win is not too far behind. Te Dalai Lama said it this way: “When you talk, you are only repeating what you already know. But if you listen, you may learn something new.” Respect, listen, resolve your dispute.
The Program on Negotiation (PON) of Harvard University, published an article (September 20, 2018) entitled “The Pitfalls of Negotiating Over Email”. We probably know intuitively that Email is not a perfect communication vehicle. The post discusses some of its weaknesses. It is difficult to read a statement on paper, and determine if the writer is serious, joking, angry, sarcastic, etc. The tonal aspect is missing in an Email. A person learns much from trying to read the body language and non-verbal communication of another party. Email makes this an impossibility. Certain comments may unintentionally come across as curt or impolite in an Email due to the informality we bestow on such communication. You can establish rapport with another, even an adversary, when the party is present. Rapport with an Email is a non-event.
President Lyndon Johnson liked to talk about meeting people and “pressing the flesh”. A negotiation via Email is lacking in the human touch. The conclusion seems to be this: If something is important, say it in person. Leave the social media to the nation’s politicians. Mediate/negotiate; don’t litigate.
An article appeared on March 22,2019, on the website for the periodical “Fast Company”. It is entitled “Why the ‘Velvet Hammer’ is a Better Way to Give Constructive Criticism”. The gist of the article is that there is indeed a proper way to deliver “bad news” to a party. The following explanation speaks for itself:
“Giving negative feedback is important in many situations. If you delay or don’t approach a sensitive subject, it’s like not telling a friend they have spinach in their teeth.
‘If you have spinach in your teeth, do you want to know or not?’ asks [Joy] Baldridge. ‘It’s still there. When something needs to be said, most people in the organization know it. Everyone, that is, except for the person who needs the feedback. It’s like a someone walking around the office with a ‘kick me’ sign on [their] back.’ “
If in a negotiation you need to strike at a weakness of your counterpart, employ the “velvet hammer”. Make your comments clinical and fact-based. You may not be met with approval, but you have advanced the possibility of having your words heard. Firmness in a position does not have to be mean-spirited or vindictive. Mediation don’t litigate.
A mediator is a professional who helps parties involved in disputes avoid reaching an impasse. But the Mediator may truly be able to impact on lives in ways not conveyed in a simple job-description. Because of her/his role of trust, a Mediator might find that there is a role to play in the following mental health areas:
1. Because of the burdens of being in a conflict situation, a person might be suffering from anxiety, depression, insomnia, etc. It would not be inappropriate for a mediator to lightly touch on the topic of seeking therapeutic help when a person or persons seems to be exhibiting “battle fatigue”. (It might well be possible to discuss this in a caucus situation.)
2. A couple seeking divorce mediation, may be well-served to first seek out the assistance of a marital therapist. While this advice might short-circuit a potential fee, there is a potentially “higher profit” in the making. A timely referral in such an event is an indication of the concern and caring that prompt many people to seek a career in the mediation field.
3. It has been said that in a divorce the only parties truly non-responsible for the turn of events are the children. Mediation process offers opportunities to remind the parties of their obligations to ensure the mental health of the children of the marriage.
The above examples are only the “tip of the iceberg”. If you are a mediator, consider how your duties may well include providing “full service” to your clients.
The Late Speaker of the House during the 1960’s Sam Rayburn (D-Tx) was known as a taciturn person. It was unique for a politician to speak as sparingly as did Mr. Rayburn. When he was asked about this, the Speaker indicated that he had learned that “you learn more from listening than by speaking”. A good mediator listens a good deal more than he speaks. By listening to the parties, watching their body language, etc. a great deal can be learned about what a possible resolution of the dispute at hand might look like. Good listening skills lead to good, incisive questions. That in turn gets at the heart of the matter; what are the interests (not positions) of the parties to the dispute? This information can eventually lead to Win-Win.
A discussion on listening skills by the writer, Martin Rosenfeld, can be found in succinct form at this site:
People sometimes express what they think they want. But the expression of a position they hold dear is not necessarily an indication of the interest they may have. We know this in mediation theory as positions v. interests. Want to learn more? Here is a brief discussion on this concept by Martin Rosenfeld.
A.J. Baime of the Wall Street Journal recently wrote about a creative problem to a seemingly knotty dilemma.(“He Had a Will to Win Back His Classic MG”/May 22, 2019). Bruce MacCormack is 81 years old. In 2003, he sold his 1971 British-built MGB to Chet Kenoyer, age 64. In 2012, Mr. MacCormack missed owning the car in question, (a delayed example of seller’s remorse!) and called Mr. Kenoyer about buying back the car for the sales price that had been established 9 years earlier. In addition, the car would be left to Mr. Kenoyer in the will of Mr. MacCormack. Mr. Kenoyer said he would consider the offer, as he apparently did not drive the car too frequently. A few days later, Mr. Kenoyer received a check for the car (the original sales price of $9000), and a copy of the will containing language that he was to inherit the car upon Mr. MacCormack’s death. To sweeten the deal even further, Mr. Kenoyer has been told he might drive the car anytime he so chose. The parties are both quite happy, it seems, as to the manner in which they attained Win-Win.
When parties face an impasse, there are often a number of solutions to help them get to an accord. Sometimes the options are discovered by creative means. In mediations, as in negotiations, always be prepared to think outside of the box. Even a case of seller’s remorse can have an ending that suits both parties quite well. All you need is good-faith and a dose of creativity. Mediate don’t litigate.
In Spring 2000, before Super Tuesday, Governor George W. Bush and Senator John McCain entered into a debate. Governor Bush had been pressed to explain why he visited Bob Jones University in South Carolina, an institution known for its anti-Catholic sentiments. Bush addressed the controversy by saying,”I make no excuses. I make no excuses.” This response was deemed a sufficient statement of remorse, and the issue was deemed closed. In time, Governor Bush became President Bush, our 43rd President.
In mediation theory, we we focus on a party’s interests and not their stated positions. A party may presumably be seeking a financial recovery or benefit. While this is their position, their interest may well be something far less tangible; i.e. respect, dignity, assurance, etc. There are times where heartfelt words are “good enough” to bring a dispute to a proper resolution. Mediate don’t litigate.
***Listen to Martin Rosenfeld on the impact of an apology***
As a mediator, I attempt to work with my clients on an affordable fee program for their mediations. (See http://www.NJMediationWorks.com). A potential client once asked me if I would do a mediation with no cost. I responded in the negative. Why is that? Therapists will argue that a client who gets a service without cost does not value that service. That is not the cause of my decision to refrain from doing a no-cost mediation. The parties need to feel that time is of the essence in reaching an agreement. When matters drag too long it becomes increasingly difficult to get to Win-Win.
This notion is similar to the religious belief many have that death and dying is actually a form of blessing bestowed upon mankind. If we did not have numbered days, how likely is it that we would perform the tasks we need to perform? After all, if I live forever, why do something now. I can do it in one thousand years! By paying for mediation, and feeling a sense of exigency, parties are more motivated to look for solutions and try to attain Win-Win.
I was once asked by a Legal Service office if I could allow a mediation to proceed by not charging their client and asking the other party to pay for the entire mediation. I said that this was not fair as mediation needs to be shared by both parties. The Legal Aid office then wrote to the State of NJ to express their displeasure with my decision. The State supported my point of view on this matter. Mediations need to be highly focused, driven by a motivation to seek solutions, and shared by all who will participate. Indeed, compassionate mediation is necessary, but there must be a sense of a shared journey for the parties involved.