As alternative dispute resolution (ADR) becomes more the rule than the exception in resolving business, legal, civil, and domestic conflicts, and as more courts require mediation before setting cases for trial, one of the most frequent questions I’m asked by potential clients is, “what should I do to get ready for mediation”. We’re all familiar with the concept of litigation—I’ll hire my attorney, you’ll hire yours, and whoever argues their case best wins. But when it comes to mediation, most people are still a little fuzzy about exactly what to expect and how best to prepare.
Although there are legal aspects to most mediation cases, mediation really is its own thing. As opposed to arbitration, where a person or panel determines the outcome of a dispute, or, litigation, where attorneys or individuals argue their case before a judge or jury, mediation is forum where the disputants (along with a mediator) can openly sort through issues, explore creative solutions, and craft a mutually beneficial agreement. Though attorneys can, and occasionally do, accompany disputants in mediation sessions, it is certainly not necessary. Mediation is not a pre-trial formality intended to exclude the parties from actively participating, nor is it a forum for lawyers to rehearse their arguments. The ultimate goal in mediation is to let the participants voluntarily reach creative agreements, not to haggle and decide who should win or lose.
So, in a process where the outcome relies more on people’s ability to constructively communicate than on who can present the stronger case, some advance thought, preparation and practice is definitely handy.
Here are six things I suggest before mediation, which I’ve seen help clients engage in constructive sessions, and reach great agreements.
1. Contact an experienced mediator
The first thing you should do to start the process of resolving a dispute is…call me! Okay, a mediator of your choice will suffice, but my point still stands. A 20 to 30-minute consultation with a professional mediator will satisfy a few key needs that can help all parties prepare for an effective and rewarding mediation.
- Pre-mediation consultation allows you a chance to vent your side of the conflict before meeting with the other party—no holds barred. A good mediator will also want to consult with the other party, and allow them an equal opportunity to discuss their side of dispute before sitting down for the initial mediation session.
- Pre-mediation consultation helps you bring the dispute into focus and separate issues, values, interests and positions (your IVIP). Click here to learn more about IVIP.
A mediator is the best person to rely on to bring everyone to the table. Good mediators are skilled at persuading others to participate in mediation in a non-threatening, non-adversarial way, and a pre-mediation consultation will help the mediator understand the basics of the dispute, enabling them to extend a more enticing invitation.
2. Forget the past
After your initial consultation, take a couple of days to “memory dump” as much about your history with the other party as possible. Though it’s important to carefully evaluate your side of the dispute, preparing for mediation is not the time to get riled up by dredging up the past, or to draft a comprehensive list of the other person’s past wrongs. In mediation, ancient history is tedious, boring, and tremendously unproductive. So, unless past events help establish your interests and values, leave them out.
3. Forget about your story
Our stories usually contain more sub-plots than an episode of Breaking Bad, but are far less interesting. When I say forget about your story, I don’t mean that you should avoid talking about your reason for mediating. Instead, try to edit out the stuff that could suck you into a vortex of negative feelings and emotions during the mediation. Too much of your story obscures your perspective, and can trigger the other person to become defensive or lash out. So, again, unless part of your story is necessary to expressing your IVIP, leave it out.
4. Face the facts
John Adams famously said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence”. Without a doubt, our opinions, demands, feelings and emotions surrounding our grievances are the prime motivators in the initial stages of dispute resolution. The problem is, no matter how righteous your viewpoints may feel, or how unimpeachable your positions seem, the truth is—they never are. Facts, on the other hand, have no regard for our perception of reality, or our emotions: water is made from Hydrogen₂ and Oxygen₁, it freezes at 32°, and evaporates at 212°, regardless of what we think or how we feel. Facts don’t take sides, and are equally common to all parties. As such, they should be eagerly sought, and dutifully utilized, as tools for clarity, reflection and objectivity.
5. Put away the win-lose mindset
Perhaps we’ve all watched too much Judge Judy, or have some imbedded notion that every dispute must be argued like it’s the second coming of Bush vs. Gore. But in mediation, the concept of win-lose, right-wrong, or guilty-innocent simply does not apply. Though mediated settlements often do have legal implications, mediation is not a trial or an adversarial forum for prosecuting or defending different sides of a case. Instead, it is a place to share interests, explore ideas, develop creative options, and find common meaning. Keeping this in mind when preparing for mediation helps you set proper expectations and open up to broader ideas for resolution.
6. Inhale – hold – exhale, repeat
When preparing for mediation (or any important conversation for that matter) it is crucial to practice some form of conscious or mindful breathing. If you aren’t familiar with the concept of mindful breathing, it’s pretty straight-forward: breathe in, hold it, then (wait for it) breathe out. I know…super complicated, right? But, as simple as it sounds, if you stop to pay attention on any given day, it’s amazing how often you can catch yourself breathing too irregularly, too shallow, too rapidly, or—not at all. Full, deep breaths signal the brain to release hormones that counteract the adrenaline released by our bodies when we are under stress. After a few breathes, the urge to fight or flee will naturally diminish, and our brains become primed for more advanced cognitive and emotional responses. Poor breathing is generally bad for your health, but in mediation, it can be the difference between crossing the bridge or burning it down. The more adept you become at conscious, mindful breathing before starting mediation, the better the chance that you will maintain focused, express yourself with clarity, listen attentively and be more creative in coming up with solutions.
Ominous, right? As spooky as it may sound—I really wouldn’t worry about it too much. The way I see it, conflict is not something to fear, but is an amazing cultural opportunity. If you think about it, conflict has been an important and necessary part of human civilization for a few thousand years. Without it, innovation would have stagnated, social and political structures may not have emerged—even the concept of collaboration may never have materialized. In the 21st Century, as governments and individuals become more interconnected, and as businesses transition away from traditional, functional organizations toward broader, matrix type structures, it doesn’t seem likely that conflict will be going away any time soon.
So, if we’re really experiencing, what we in the mediation and negotiation business call, the “golden age of conflict”, it’s more important than ever for each of us to understand what drives conflict, how to engage it constructively, and how to utilize it as a tool for better social understanding. That’s where I come in. I’m a mediator, negotiator and dispute resolution consultant, and I’m passionate about helping people, businesses and organizations change the conversation from contention to cohesion.
My goal is to assist people in constructively engaging their conflict—helping them narrow their focus, make sense of their differences, and better integrate their interests. I practice a facilitative-evaluative form of mediation, and adhere to the four fundamentals of principled negotiation: (1) separate the people from the problem; (2) focus on interests, not positions; (3) invent options for mutual gain; and (4) insist on objective criteria. In other words, though I do not provide legal advice, make decisions, or instruct people on what to do, if I can see that positions will lead to bad agreements, opinions or viewpoints are not being fully explored, or that the threat of future litigation is not completely mitigated, I have a duty to the process of mediation, to the integrity of the resolution, and to my clients, to point it out—all within a safe, comfortable and collaborative environment where people can create solutions that lead to strong, long lasting agreements.
When I’m not working one-on-one in mediation, I’m busy consulting with business and civic organizations, presenting keynotes on conflict resolution, publishing articles, and sharing useful information and insights through social media. I invite you to join me as an advocate for improved social dialog by following my social media channels, sharing information with friends, family and colleagues, and by participating in the discussion through comments, feedback and sharing your own experiences. Welcome to the golden age of conflict!
We need to talk! When is the last time you heard those words from a spouse, a partner, a colleague, or someone you absolutely cannot stand? If you’re like most people, the mere thought of hearing, “we need to talk!” makes your face flush, your blood pressure rise, your limbs tingle, and your mind go completely blank. Polite small-talk can be uncomfortable at best, but important conversations (where emotions are hot and a lot is at stake) are likely to not just make you uncomfortable, but to render you almost entirely, intellectually, useless.
Unfortunately, this is a common human reaction triggered by the oldest and most primitive part of our brain. When confronting any perceived threat, our reptilian brain (brainstem, cerebellum, hippocampus, amygdala and hypothalamus) is the first to respond, triggering the fight or flight response which – though useful for survival – is less handy when it comes to engaging in rational thought. This reptilian response causes our heart rate to increase, our breathing to become rapid, and our body temperature to rise, and, urges us to attack or acquiesce, bite or block, or unleash or unfriend – all before our higher brain (cerebral cortex) has a chance to catch up to what is happening.
So, what are you to do when evolution and physiology seem to have sabotaged you against something as fundamental to civilization as communication? How can you override (or at least marginally disrupt) this primal response long enough to engage in critical thought?
Here are 5 tips you can use when faced with, “we need to talk”, which can improve both the process – and the outcome – of the most gut-wrenching conversations.
1 – Count 10 full, deep breaths
Breathing has some amazing effects on our physiology. Full, deep breaths signal the brain to release hormones that counteract the adrenaline released by our bodies when we are under stress. This leads to a gradual calming effect which reduces the urge to fight or flee, and gears us up for more advanced cognitive and emotional responses. Counting breaths also stimulates higher brain functions (logic, motivation, planning, and language) and encourages systemic thinking, which can help us come up with more imaginative solutions to complex problems. Counting 10 breaths also has a built in practical benefit. The time it takes to count 10 deep breaths (about one minute) provides enough space to begin actively listening and collecting data, while also demonstrating to the other person that you are listening and engaged.
2 – Bite your tongue…literally
It’s natural to react to gut-wrenching conversations by blurting out reflexive counter-arguments (fight), or shutting down (flight). We’ve all been cut-off or shut-out in arguments, and know firsthand how much more confusing and tense it can make the situation. As silly as it may sound, the action and slight discomfort of physically biting your tongue is quite useful in preventing theses knee-jerk responses, by giving you a subtle, tactile reminder to prohibit speech and remain alert – both of which help foster one of the most important (but seldom used) techniques of effective communication, attentive silence.
3 – Use Attentive Silence
Attentive silence (silence accompanied by active mirroring of facial expressions, direct eye contact, nodding and forward posture) is perhaps the most valuable tool of interpersonal communication. On a practical level, attentive silence shows the person speaking that you are paying attention to what they are saying with no distractions, and creating a strong impression of engagement and interest. On a physiological level, active listening focuses your thinking, allows information to efficiently transverse across all areas of our higher brain, then route back to the long-term memory centers located (perhaps surprisingly) in our primitive, reptilian brain. This cycle plays a key role in establishing and developing effective communication by introducing a stimulation – assimilation – analyzation pattern which, with repetition, reinforces long-term (positive and negative) memories. When we experience more positive and rewarding outcomes, newer, good memories eventually prevail over older, bad memories, which, with repetition, can become fixed. Practicing attentive silence helps us to eventually associate conversation with positive feelings and emotions, and trains our minds to more quickly access higher brain function in future situations.
4 – Focus on the issue, not the individual
It can be very difficult to stay objective during a difficult conversation and avoid making it personal. In tough conversations, where there’s a lot on the line and the positions widely differ, your urge to “take them down a notch” by making insults, questioning their character, or dismissing them as “crazy” can be extremely hard to resist. As difficult as it may be to refrain from making it personal, it’s important to remember that most of our interactions are with reasonable, intelligent people, who (like us) seek acceptance, connection and understanding. Listening carefully for your counterpart’s underlying concerns, rather than verbally or mentally “tearing them apart”, keeps your mind focused on the issue at hand rather than the individual you’re speaking with. This eliminates cognitive and emotional distractions, reduces confusion and prevents the conversation from heading off on unproductive tangents.
5 – Say “thank you”
Once you’ve allowed the other party to speak their mind, and have taken a reasonable amount of time to calmly accumulate, assimilate and actuate as much information as possible, thank them for taking the time to bring the matter to your attention. I know…this can be a very tough ask depending on the situation and the person. If a sincere “thank you” is hard to muster, a tactical “thank you” (aiming at an end beyond the immediate action) will suffice. The unexpected olive branch that a thank you extends not only demonstrates that you have been paying attention, but conveys that you validate the other’s concerns and welcome the opportunity to work with them to clear the air. “Thank you” diffuses any lingering tension, inviting constructive exchange and cooperation.
About Barber ADR
Jason Barber a negotiator, mediator and resolution consultant with focus in the areas of international business, civic, commercial and domestic law, community disputes, probate, real estate, and workplace conflict resolution. Contact us at Barber ADR today for a complimentary consultation.
Phone: 801-895-4100 • E-Mail: email@example.com