Skip to main content

CIArb News

Managing Communication and Negotiation in Mediation

22 February 2016 Features

As long as parties in mediation continue to blame the other side and reinforce their own position, there is little room for progress. The mediator’s voice can let parties know that they have been heard and understood and can adjust the language being used by and between the parties to shift perceptions of the dispute and of the possibilities that might lie beyond it. So, the mediator’s awareness of and ability to fine-tune their own phrasing patterns are significant, particularly in reality testing.

The Starting Point: Listening

Giving people a really good listening to fosters rapport, reduces the emotional temperature and allows reason and pragmatism - two ingredients necessary for effective commercial negotiation - to come to the fore. Matching their language lets others know that, and what we have heard and understood.

They will hear us more easily and feel more comfortable to explore perspectives, ideas, proposals, offers, responses and tactics. Do they use visual, auditory or kinaesthetic language: “They can’t see the wood for the trees”; “He really likes to blow his own trumpet”; “Their argument is so woolly”. Responses using their preferred pattern can help, for example, “It looks like, for you, there’s a clear solution...”; “It sounds like you’d like him to hear.....;” “You’re feeling frustrated by how they’re handling this.....”

Reality Testing Proposals and Responses

There can be a fine balance between reality testing and confrontation, especially as the process progresses, people are getting entrenched, or the mediator is getting frustrated. Some ideas that can help here are:

  • Ask why without asking “Why?”

“Why?” can make someone feel that they want or ought to explain, justify or defend themselves. Their focus remains on themselves and on the past or on saving face in the realisation that their perspective has been challenged.  The following examples of “why” questions use a few more words yet mean the same thing. They can loosen thinking and enable exploration of alternative ideas.

  • what is your thinking about...?
  • what are the reasons for....?
  • please tell me about the background to...
  • what are your conclusions about...?
  • how is [x] different from what you’re looking/asking for?
  • Depersonalise to defuse

It is not uncommon in both joint and private sessions for parties and their advisors to make belligerent, blaming, self-justifying and sometimes downright rude statements that reinforce perspectives and positions. The mediator can challenge without being confrontational, aiming to take the sting out of what is said and to open up and shed light on the issues to be addressed. For example,

If they say...

...you might say something like

“What you’ve/they’ve got to understand is...”

“So, there’s misunderstanding about....”

“You’ve/they’ve got it wrong.......”

“There is a difference of opinion about.."

“It’s obvious that/everybody knows that..”

"A perspective that many people share is”

"You keep contradicting yourselves..”

“A few minutes ago I heard [x]; I’ve just heard [y]”

“They’re talking complete rubbish”

“So, there’s disagreement about....."

                                                                                                                               
It takes concentration and practice to pay close attention to precise phrasing patterns, noticing the actual or potential impact and acting to defuse the situation immediately. Well-judged and well-framed statements that depersonalise, phrased and pitched appropriately for the parties can ease tension, minimise confrontation and begin to open up mental space for clearer, creative thinking.

  • More on matching language

Phrasing patterns used by the parties indicate the sorts of things that influence them in their thinking and decision making. Using the same patterns as theirs will enable them to hear more clearly and feel more secure in their understanding of the deal they are working towards. For example, in exchanging offers:

a party that says:

will hear most clearly:

"I want/need x and y"

"They want to give you..."

“This will be resolved when x and y happen”

“For them, a solution incorporates x & z”

“If we can get x and y in place, then we could consider z"

"What could you say to them that might encourage them to look at x and y"

"It would help me hugely if we could agree on x and y"

"A really helpful starting point for this might be to consider x and z"

These ideas and approaches, used with awareness and lightness of touch, can fine-tune a mediator’s style and help to generate and maintain an atmosphere conducive to robust, constructive communication and negotiation. They are relatively straightforward to describe and understand; however they can be trickier to embed as habits.

Jane Walmsley MCIArb, practises as a commercial and workplace mediator, as a coach, psychotherapist and trainer. She co-designed the CIArb Commercial Mediator Training Course and regularly delivers that training in the UK and in Kenya. She is a member of the RICS and CIArb assessor panels, acting as CIArb Chief Assessor in the UK, the EU and Kenya. She offers coaching support and psychotherapeutic support to individuals and groups. Her clinical experience is in both private practice and the NHS.

This article is based on Chapter 5, Further Communication Skills  in “How to Master Commercial Mediation, Part 2: Maturing” by David RIchbell. Publisher: Bloomsbury Professional. ISBN: 978-1-78043-682-1.