© 2012 By Bill Eddy, LCSW, Esq.
Whether you are a lawyer, counselor, manager or other professional, you are likely to be involved in mediation regularly or occasionally. Legal professionals are required to have their clients participate in mediation before going to court in many kinds of disputes these days. Yet mediation isn’t perfect and some disputes unfortunately remain unresolved, despite the mediator’s and others’ best efforts. Studies show that 60-80% of disputes are resolved in mediation, depending on the type of dispute, so it still has a great track record and is the preferred approach in most situations – but perhaps we can do even better.
In an effort to make mediation more effective – especially in high conflict cases – some mediators offer pre-mediation coaching services, or have other professionals provide this service. In this article, I suggest that pre-mediation coaching can be particularly effective if it includes teaching and practicing 4 specific skills, especially for clients dealing with a high-conflict dispute. This article is followed by a 2-page handout for clients, which you have my permission to use in individual coaching sessions.
When to Provide Coaching
Depending on the nature and history of the dispute, it can be very helpful to have a coaching session with each client several days before the mediation begins. This way, each participant can realistically think about the mediation process and can start thinking about making proposals and calming himself or herself down. Yet you don’t want to do this too long before the mediation, or it may add to the person’s anxiety.
It’s also possible to do this at the beginning of the first mediation session, either separately or with both parties together. You can send out the attached client handout (4 Skills for Mediation) with pre-mediation materials, then refer to it and reinforce the 4 skills at the beginning of the mediation.
If you are dealing with a very high-conflict dispute, however, it is highly recommended that the parties have training in using these 4 skills several days before the mediation. You might even consider having more than one pre-mediation coaching session for each client.
Who Should Provide the Coaching
The mediator? In ordinary disputes, the mediator can probably do this coaching – either before the mediation or at the beginning of the first session.
A lawyer? If you are a lawyer with a client who has been referred to mediation, you may be in the ideal position to coach your client on using these skills in mediation. You already have a relationship and you know the basic facts of your client’s case. These skills will also help you in your own work with your client, especially in managing your client’s stress and potentially resolving the entire case out of court.
A mental health professional? Depending on the nature of the dispute and the level of expected conflict – and how long it has been going – it may be wise to have a mental health professional or another experienced mediator provide the pre-mediation coaching. Such a professional may be able to use counseling skills in calming the client, helping the client see other points of view, and dealing with any related mental health issues.
By having someone other than the mediator provide the coaching, it reduces any effort by a possible “high conflict” person (one who chronically gets into conflicts, remains in conflicts for a long time and makes them worse) to hook the mediator into their upset emotions and extreme point of view. High conflict people (HCPs) usually put a lot of energy into persuading others – even neutral mediators – to take their side and to become responsible for resolving their problems. They usually forget that the mediator is supposed to stay neutral.
If the mediator or another professional is meeting each client for the first time, it is fine to get acquainted with some chit-chat and basic information about the case. However, you don’t want to get too deep into the client’s upset emotions about the case, as the focus of your session is to teach skills that the client will use. (A coach who is not the mediator should make sure to avoid becoming involved in the case in any other way, like telling the mediator anything about the content. The client needs to be responsible for that, although you can help the client practice.)
Teaching the 4 Key Skills
It’s helpful to tie the skills to the issues that the client has mentioned. Explain each skill by saying how it can benefit the client. For example:
Managed emotions: Learning this skill can help you stay calm when so-and-so is talking in the mediation. It will help you appear reasonable and focused on solutions.
Flexible thinking: Can help resolve your dispute in a way that works for you.
Moderate behavior: Realizing how to communicate so you don’t make the other person defensive can be really helpful, since most people don’t think about that when upset.
Check yourself: This helps you remember to use the skills during the mediation process.
Practicing with the Client
If it seems appropriate, you can practice at least one example of one of these skills in a role-play exercise with the client. Suggest that the client take the role of the Other Party in the dispute for a minute or two, and you can play the Client. Ask the client (playing the Other Party) to say something the Other Party might say in the mediation that would be upsetting for the client. Then, you (playing the Client) respond using one of the skills.
Other Party says: You’re not getting enough work done! You’re always slow!
Client (you) says: (Remembering not to take it personally): Then I have a proposal: Why don’t
you tell me what your priorities are, since you have several projects for me.
Then, switch roles and you be the Other Party and let the Client play himself or herself. Repeat the exercise. Clients often find this very helpful, because they didn’t have the words and just got upset in the past. If you have time, you can do several such exercises or you can let the client talk about other issues.
Ask the Client to Summarize
At the end of the Coaching session, ask the client to summarize what he or she has learned. This helps the client remember better and shows how important you believe these skills are for his or her success.
Bill Eddy is a lawyer, therapist and mediator. He is the author of several books and the President of the High Conflict Institute, which provides speakers and trainers: www.HighConflictInstitute.com.
4 Skills for Mediation
A Client Handout
© 2012 by Bill Eddy, LCSW, Esq.
If you’re preparing for a mediation to solve any type of problem, it helps to know about 4 key skills that can help you during the mediation process. Most mediations involve a mediator who has been trained to stay neutral and help the participants make their own decisions. The mediator is in charge of the process and the participants are in charge of making proposals and making decisions about the issues at hand. Sometimes people try to persuade the mediator to take sides, but the mediator is supposed to be very careful to stay neutral and to help the parties make their own decisions. The following 4 skills can help.
1. Managed Emotions
Talking about unresolved issues can be emotionally upsetting. However, it is possible to manage your own emotions by anticipating upsetting moments and preparing for them. Don’t be surprised if you feel frustrated or angry upon hearing different points of view, hearing proposals you don’t like, and having to think of alternatives. Remember that most conflicts are resolved through this process of talking and listening and creating solutions. Prepare yourself to deal with any possible difficult moments.
How can you help yourself stay calm? One of the best techniques is to memorize short encouraging statements that you can tell yourself as you are going through the process, such as:
• The agreement at the end is all that matters.
• Sometimes it takes a while, but an agreement is usually reached.
• With high-conflict emotions it usually takes longer, but agreements can still be reached.
DON’T TAKE IT PERSONALLY:
• Personal attacks are not about me – they’re about the person who lacks self-control.
• I don’t have to defend myself or prove myself – I’m already okay as a person.
• We can disagree about the past – reaching an agreement about the future is what matters.
2. Flexible Thinking
A big focus of mediation and other settlement methods is making proposals. It helps to prepare proposals for each issue you are trying to resolve or plan to raise in the mediation. That way you don’t get stuck in “all-or-nothing thinking” and can avoid just getting upset when your first proposal isn’t immediately accepted. Any concern about the past can be turned into a proposal about the future.
It can help to prepare two proposals on any issue, so that you don’t get stuck if your first proposal is not agreed to right away. You can make a list of issues and then write two proposals for how you would like to see each one get resolved.
Responding to proposals is another area that can help with practice. In general, it helps to just respond with “Yes” “No” or “I’ll Think About It.” This saves arguing over the proposal itself, since what really matters is finding an agreement. Of course, you can ask questions about a proposal for greater understanding and to picture how it would look if you both agreed. But avoid challenging questions, like: “Why did you say that?” Or: “Do you realize that’s ridiculous?” If you disagree, just pause and say “I won’t agree to that,” and focus on making a new proposal yourself.
3. Moderate Behaviors
Mediation is a structured process, to help people think of reasonable solutions to problems, even when they are upset. Therefore, there are several ground rules in most mediations. It helps to think about them in advance and remind yourself to follow them, including:
A. Don’t interrupt while the other person is speaking. Instead, make notes to remind yourself of any ideas that pop up while he or she is talking. Then you can raise them when appropriate.
B. Treat everyone with respect. This means avoiding insulting comments, raising your voice or pointing fingers. These behaviors often trigger defensiveness in the other person. Instead, you want everyone to stay calm and rational, in order to focus on solving the problems you came to discuss. Speaking respectfully goes a long way toward reaching agreements that will work and last over time.
C. Use “I” statements. These are sentences that start with “I feel…” or “I prefer…” or “I have another idea…” Avoid “You” statements, such as “You always…” or “You never…” “You” statements tend to trigger defensiveness in the other person, which will make it harder to reach an agreement. Just use “I” statements to convey your own perspective, rather than assumptions or criticisms of the other person’s perspective. Remember, all you need to do is to reach an agreement. You don’t need to try to change the other person’s way of thinking (which is unlikely anyway).
D. Ask to take a break, if necessary. Avoid just getting up and walking out. Ask for a break, so that everyone can stop for a few minutes. Mediation is more flexible than a court hearing or arbitration. Taking breaks can help you earn respect – rather than resentment if you rush out – and can help you calm down if you’re upset. It’s also fine to take a break to get advice from a lawyer, friend or other advisor before you make final agreements. Just ask for some time to do so – either a few minutes, or several days or weeks if necessary. Mediators generally do not pressure you to make final decisions at the same time as you first discuss an issue.
4. Check Yourself
From time to time, ask yourself if you are using these skills. It’s easy to forget in the middle of discussing problems or upsetting issues. The mediator will try to help everyone in the mediation stay calm and focus on understanding problems and finding solutions. Just think about these four skills before the mediation and during the mediation, and you may do very well.
Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.