What are some effective ways to help parties communicate more effectively during mediation?

I follow certain best practices at mediations: - no opening statements at the plenary session: opening statements are often designed to please the client, not to persuade the adverse party, and start a mediation on the wrong foot by encouraging adversarial thinking. - get into breakout rooms as soon as possible: the mediator needs to establish in a plenary session that she/he understands the dispute, but the sooner the parties are separated, the better. - arm the mediator with rationales, not just numbers: especially early on, offers should include a rationale, i.e., “here’s why this is a fair offer”. If you cannot explain it to the mediator, there is no way she/he will be able to explain it to the adverse party.

Preparing your mediator with facts, pros and cons is an effective way to prepare yourself and your mediator. Having a mediator aware of both sides makes them more effective and then when you advocate for your client you seem more reasonable.

I have found maintaining credibility and sincerity throughout the mediation process is paramount. While each party wants the best result, some form of compromise is the obvious goal. Approaching mediation as a zero-sum game is counterproductive. Also, I almost never give any form of opening to opposing counsel and their clients. It is typically detrimental to meaningful discussion.

It's important to have a plan for breaking through a stalemate. For example, neither party may wish to make the opening offer. In that situation, a blind bidding process may assist in breaking the logjam. The mediator receives each party's bids and only shares them with the other side if they are within a pre-defined margin of each other. There can be several rounds of bids, but the number of rounds is usually agreed in advance. At the end of the process, if no settlement amount has been reached, the parties can agree whether or not to reveal their respective last bids to each other.

Acknowledge when there has been an important moment and that the mood has shifted. This enables space for participants to be able to move from entrenched positions.

In addition to body language, I have found that it is helpful to demonstrate listening by actually stating that you are listening: "I hear what you are saying" or "I understand why you might hold that position." Doing so is a way to establish rapport and invite a similar quid pro quo as you seek to state your position. If that message is too sublte or simply ignored, you might even find some success with a polite, but firm statement "I heard you and understand your position, now I'd like you to hear and understand mine - will you do that?" It would be a truly difficult person that wouldn't respond affirmatively, and once they do, you may find it helpful to remind them of their earlier agreement to listen if they stray.

Active listening is an effective tool, however Its not as important to the party that you the mediator understand them, as it is for them to know that the other person understood them. Encourage the other person to explain what they heard and understood and confirm with the original speaker that that is accurate. If communication wasn't an issue, odds are that they would not need your assistance.

Being open-minded, not passing judgment, and being patient is key in active listening. Additionally, asking probing questions to gain further insight and using non-verbal cues, such as nodding or maintaining eye contact, can show the speaker that we are engaged and interested in what they have to say. Lastly, paraphrasing and summarizing what the speaker has said can further ensure comprehension and allow for any necessary clarification. By practicing active listening techniques, we can foster better communication and strengthen our relationships with our clients.

As a family law attorney, using open-ended questions in mediation is key. These questions dive into the core concerns of all parties, fostering a deeper understanding. They move discussions beyond mere disagreements, revealing underlying interests. This method not only clarifies misunderstandings, but also encourages the generation of new resolution ideas. It displays a level of curiosity and empathy, vital in the emotionally charged realm of family law. By adopting this approach, I can better serve my clients, steering them towards more amicable and meaningful resolutions.

Begin with questions that are broad and encourage more detailed responses. For example, instead of asking, "Do you think the custody agreement is fair?" you might ask, "How do you feel about the current custody agreement?" This encourages your clients to reflect on their emotions and express their thoughts more comprehensively. When appropriate, ask your clients to share their personal experiences related to the case. This storytelling approach can help unravel the motivations and emotions behind their decisions, giving you a clearer understanding of their needs and desires. For instance, you might ask questions like, "Can you tell me more about a time when you felt your ex-partner was not prioritizing your child's well-being?"

As a mediator, I find reframing negative statements to focus on the positive key to a successful outcome, especially in divorce mediation. One of my favorite tools that I learned in a training from Woody Mosten is to take disagreements and reframe them as agreements--"You are both in agreement that we don't yet have a solution to this issue." for example. Or where there is a disagreement over a parenting plan, "You are both in agreement that you love your children and each want to spend as much time with them as possible." Focusing on the positive and where the parties are in agreement even if they do not see it themselves, can help them to be more willing to participate and not be so locked in to their "positions".

As an attorney, employing reframing during mediation is instrumental. It steers away from dwelling on the negatives, instead, it redirects focus towards finding common ground and solutions. Being sincere and realistic is key in this process, as false optimism can be spotted easily and harms trust. This authentic approach to reframing not only facilitates a more constructive dialogue but also nurtures a trustful environment conducive to resolution.

I personally believe the trend of dispensing with opening statements between the parties and jumping straight into separate rooms and negotiations is a mistake. There is a way to have openings without completely alienating the other side. Clients need to hear from the other side to have their feelings validated and/or corrected where they may be misplaced. Even if I believe my client has strong defenses in a case, I typically have empathy for the plaintiffs and want them to know I feel that way. It is possible to show human emotions and also be a zealous advocate for one’s client. They are not mutually exclusive.

In the words of author Michael P. Nicholes, "Being heard means being taken seriously." If we want to validate someone's emotions, we must give them the opportunity to express themselves. When people don't feel heard, it's a normal human reaction to feel disregarded and disrespected. When someone feels heard, it affirms their worth as a person. It's important to note that validation doesn't necessarily mean agreement; it simply means that they feel acknowledged. When someone feels unheard, they're less likely to be open to listening to others. On the other hand, when someone experiences validation through active listening, they're more inclined to reciprocate and listen to others in return.

This is a crucial, vital point to make in the context of family mediation - I will venture to say that no family law dispute will settle unless each party receives some sort of validation for how the dispute has made them feel. When we say that a mediator validates the parties' emotions, we do not mean that he or she agrees with them - such expressions of agreement, even implicit, would be counter-intuitive to the mediator's role as a neutral third party in the process. Yet, each party needs to be heard, and active listening by the mediator can have a profound, positive impact on the progress of the dialogue.

This is so true. If parties feel like their emotions are being acknowledged and validated, it makes it a little easier to get closer to a settlement. As well, it may be a starting point to set aside the hurt feeling and get out of each others way to come to the table to resolve the dispute.

One thing I've found helpful is non-verbal communication exercises. Parties often have unspoken emotions and concerns, which can hinder productive communication. Employing non-verbal communication exercises can help address this issue. For instance, practitioners can ask parties to use body language, facial expressions, or drawings to communicate their underlying concerns. This technique can uncover hidden motivations or emotions, leading to a better understanding of the parties' needs and interests.

Mediation success begins before mediation. You have a much better chance at resolution if you can narrow down the issues and facts in dispute before mediation. It also helps if the parties have traded preliminary demands/offers. It is also helpful to make sure the mediator is aware in advance of anything you think may be an obstacle to reaching settlement.

As a party, remember that the mediator is working to bring together two selfish competing interests. She is trying to balance those interests and protect what matters most to each side so that she can reach a compromise. Don't make the mediator's job harder than it has to be by not letting her in on your strategy or treating her like she is the adversary. Let her know what matters most to your position and where you might be more flexible. Provide a road map for future compromise by letting her know that if she can convince the other side of something, you'd be willing to provide something in return. And, of course, compromise where compromise is appropriate. Remember, it's not a settlement if someone gets everything they wanted.

Mediated settlement negotiation (mediation) is used to resolve complex international-commercial-trade and political disputes as well as ordinary family law, injury, and workplace disputes, etc. Those of a certain age may remember the term: shuttle diplomacy. It’s a way to describe mediated negotiations involving war and peace. Peer supporters may receive some training, but some professional mediators have law degrees as well as graduate degrees in mediated dispute resolution. Some jurisdictions require higher minimum qualifications than others. There are some international rules and standards, too. That gets complicated. The point is: If done properly, mediation can help maintain and rebuild peace as well as working relationships.

In the family law dispute context, the considerations in response to the question can be quite unique - because emotions often triggered by separation are amplified to 11, and can be very personal. In a very real sense, they can drive how the negotiation dialogue evolves, and its pace. Much of the time, I conduct my family mediations by shuttle diplomacy. Even here, there is an opportunity for the parties to communicate their positions and interests to each other, albeit not directly. My role then becomes particularly important and impactful - in my one-on-ones with each party, in caucus, I need to establish clearly what items we discussed can be shared with the other party, and what is information for my benefit, in my role as mediator.