Effective negotiation is a paramount component of the ADR process. For mediators to produce desirable outcomes for their clients, they must find ways to effectively communicate to resolve the dispute at hand. Negotiations can be fraught with anxiety and discomfort because Attorneys tend to focus on positional bargaining instead of much better approaches like collaborative problem solving and good-faith collaboration. This is why it is important for mediators to have a few guiding principles in mind to overcome resistance to concessions. While this list is in no way exhaustive, these are 10 tips to consider adopting before your next mediation:
- Listen actively
It’s important to be attentive and respectful of all parties involved to fully understand all arguments. Exercising active listening will allow you to determine when and when not to intervene in the ensuing dispute, while also being able to obtain what might be valuable information.
- Ask thoughtful questions
Asking good questions works in tandem with active listening. By paying close attention to the conversation, you will find that it is much easier to ask substantive questions that encourage thoughtful responses that expand beyond “yes or no” responses. Asking the right questions encourages reflection on the details of the unfolding conflict and can elicit important facts of the dispute.
- Be prepared
Mediators should do their homework and be well versed in the facts and relevant law prior to the negotiation. This will assist them in knowing what is negotiable and what is not.
- Manage expectations
Hopefully, at this point, you have realized that many of these tips work together to deliver efficient and effective ADR services. By asking good, thoughtful questions and actively listening to your client, you will be able to determine a path forward with a clear goal in mind. This will prevent misunderstandings and allow you to manage your client’s expectations. Doing so will allow you to walk away from the session with a satisfied client.
- Set limits
It is important to establish parameters before beginning a negotiation. For example, decide how long the discussion should last, how much time each party should be allotted to speak, and what issues should be off-limits during the discussion. This will help keep the process running smoothly and prevent ill feelings from developing between the parties involved.
- Identify and leverage potential tradeoffs
According to Katie Shonk, editor of the Harvard Law Negotiation Briefings newsletter, “principled negotiation allows you to leverage the principles of your opponent to win a negotiation. Parties can often reach a better agreement through integrative negotiation– that is, by identifying interests where they have different preferences and making tradeoffs among them.” Although identifying and pursuing tradeoffs may require compromises, the successful management of your client’s expectations will have positioned you to pursue such opportunities.
- Exercise Patience
The Utah Court Rule 104 (c) says, “ADR providers should be patient with and courteous to the parties, their attorneys, and any witnesses. They should encourage similar conduct by all participants in the proceedings.” The Utah Courts value patience, and you should too. Make sure your body language and tone of voice convey your sincerity and respect for the other party; this will make it easier for them to be sincere and respectful towards you as well.
- Acknowledge your biases
While mediators may try their best to conduct mediations without prejudice or bias, “Implicit bias, the automatic association of stereotypes and attitudes with social groups, may produce discriminatory responses toward parties despite a mediator’s best efforts at creating an outwardly even-handed process” (Izumi, 2017). However, with “intention, attention, and effort” (Devine, 1989) implicit biases can be reduced. Reflect on your own beliefs and statements and ask yourself if those words are interfering with your ability to objectively help your client.
- Exercise Empathy
Taking the time to understand someone else’s point of view emphasizes the importance of maintaining the human-centric approach to mediation. The ability to read and understand someone else’s emotions is known as emotional intelligence (EQ). Utilizing empathy and EQ encourages effective communication, which can help mediators resolve disputes for their clients. Read our previous blog post on the importance of EQ and mediation here.
- Recognize individual differences
It’s important to recognize and understand that individuals from different backgrounds, cultures, religions, genders, ages, and the like, may have different perspectives that could impact negotiations and subsequent ADR processes. You must be willing to consider their ideas and suggestions without judgment or bias towards your own views.
While every mediation is unique, these tips should provide you with a better idea of how to approach the subject with a more human-centered approach. With more focus on the unique individual needs of the parties involved, you can help mitigate the stress that may arise and prevent difficult situations from escalating. Although these steps may not always guide a dispute towards a favorable outcome, hopefully, they will make the process more positive for all parties involved.
References:
https://blc.law/wp-content/uploads/2016/12/2005-07-mediation-ethics-branchmainlanguagedefault.pdf
https://www.pon.harvard.edu/daily/negotiation-skills-daily/top-10-negotiation-skills/
Carol Izumi, Implicit Bias, and Prejudice in Mediation, 70 SMU L. REV. 681 (2017) https://scholar.smu.edu/smulr/vol70/iss3/5
Patricia G. Devine, Stereotypes and Prejudice: Their Automatic and Controlled Components, 56 J. PERS. AND SOC. PSYCHOL. 5, 16 (1989)
https://www.utcourts.gov/resources/rules/adr/104.htm
https://www.pon.harvard.edu/daily/dispute-resolution/principled-negotiation-resolve-disagreements/
