Syllabus 4

Marvin Garbeh Davis posted 7 months ago, 1 Responses
Mediation is a powerful tool for resolving disputes and one of the key pillars of mediation is the trust that the mediator is able to build with and between the parties, often in a short space of time.
Trust cannot be assumed, simply because all the parties have agreed to mediation, possibly the choice of mediator and are in attendance. Building rapport is the essential first step towards creating trust, and the quicker it can be established, the quicker the mediation can start to work for all parties involved.

Creating Rapport in Mediation
The Mediator has an opportunity to build rapport at the beginning of the Mediation by setting clear expectation for the session, the process, the role of the Mediator and how the Mediator will behave will create a strong foundation on which to build.
There are many ways a Mediator can build rapport. Among these is the Imago Couples Dialogue that was developed by Drs. Harville Hendrix and Helen Hunt basically for marital counseling. Basically this process seeks to transform conflict between couples into opportunities for healing and growth through communication. The Couple Dialogue consists of three distinct conversational processes. I believe this process can be used to build rapport in Mediation as well. The processes are Mirroring, Validation and Empathy.
Mirroring reflects a genuine attempt by the listener to understand the speaker’s point of view.  The speaker confirms if the listener accurately conveyed the speakers’ perspective; if not, the speaker identifies if not, the speaker identifies what aspect of her message was missing or misunderstood, and the listener tries again based on the speaker’s feedback. The process repeats itself until the speaker confirms the listener got it right. 
For example, the Mediator might say “If I heard you correctly, you said that you don’t like it…” In mediation circles, mirroring is often referred to as looping. As Professor Mnookin describes the process in his book on negotiating, Beyond Winning: 
How do you go about demonstrating that you are trying to understand? Use a technique we call the empathy loop. The empathy loop has three steps: (1) You inquire about a subject or issue; (2) the other side responds; and (3) You demonstrate your understanding of the response, and test or check that understanding with the other person.
Matching behavior, also known as mirroring, means copying the other person’s body language – posture, gestures, speed of movement, etc. Once you are matching body language, you can then start to lead the other person to start to match yours. For example, if someone has quite closed body language – crossed arms and crossed legs – you would do the same. Then you would uncross your legs and see if they follow. If they don’t straight away, go back to matching until they do.
Mirroring also works with voice matching – speed, pitch, volume. For example, when a party feeling stressed starts speaking very quickly, you reply in a similar tone, with similar language, but then start to slow your speech and use less emotive language, to get them to do likewise. Both of these will make the other person feel more comfortable and confident that you “get” them.

The second step in the Couple’s Dialogue is validation. Once the speaker confirms that the listener accurately reflected back the content of the message, the listener conveys that the message he just heard makes sense. It doesn’t mean the listener necessarily agrees with the speaker’s perspective. Instead, it conveys that the listener believes the speaker’s position is legitimate and understandable. A validating statement would be something along the lines of, “you make a fair point. I can see that I appear uninterested in what you have to say when I glance at my iPhone while you are speaking to me.”
In mediation, validating a party’s narrative helps that party feel heard and understood. Achieving that for a party can often represent a turning point because until that moment all that the party heard were statements from the other side invalidating his or her perspective. And of course that party’s lawyer is being paid to agree with them. So what’s that worth? But when a neutral mediator who has a choice in the matter says he or she understands the party’s position, it is very meaningful.
Of course, as noted, validation is not agreement. Accordingly, if after venting and hearing validation, the party asks the mediator, “So, do you agree with me now after you’ve heard my side of the story?” the mediator should respond along the lines of, “I’m not a judge and my job here is not to agree or disagree with either side. Instead, I’m just trying to understand each side’s perspective, and certainly you’ve done an excellent job of explaining to me why you feel the way you do about what happened.”
The final step in the Couple’s Dialogue is empathy where the listener attempts to actually step into the speaker’s shoes and truly understand how they are feeling by articulating their perspective. A statement indicating empathy would be, “you felt so hurt when I made that comment. My statement made you feel betrayed and vulnerable. I would have felt the same way if I were in your shoes.”
Empathy is obviously going to be less intense in a commercial context than in marital therapy. Indeed, in the commercial context, the three steps of the Couple’s Dialogue may merge to an extent. As noted above, Mnookin calls the process “empathy looping,” which implies combining mirroring with empathy (in his book, Mnookin provides an excellent example involving a prospective employee negotiating for reimbursement of moving costs).
But stepping into the other side’s shoes and articulating their point of view remains a distinct step that can be very powerful if a mediator can persuade the parties to try it. As Denny shares concerning a partnership conflict she personally experienced:

Using rapport to resolve disputes

Active Listening is a crucial skill in building rapport. Active listening means the mediator devotes his entire body and mind to listening to the messages sent by the conflict parties.  The ability and willingness to listen with empathy is often what sets the mediator apart from others involves in the conflict.

The key to active listening is the ability of the mediators to demonstrate that they are listening to the messages of the conflict parties, using both verbal and nonverbal.

Verbal reactions to the messages of the conflict parties:
To communicate to the speaker that you are really listening to him or her:

•	Make supportive statements like: “Go on”.  – “Then what happened?”
•	Express acknowledgement: “I understand.” – “I see.”. “Ok”.
•	Mirror the reception of the message: “hmmm” – “aha” – “oh”.
•	Check meaning” Is it correct that you said…” – “You seem to be angry about…”
•	Ask for clarification: “I am not sure I understand…” – “Did you say...” – “Can you give me an example?”

Active listening creates a positive environment that makes the speaker feel heard, understood, accepted, validated and respected. Active Listening requires a desire to understand another human being, an attitude of respect and acceptance, and genuine empathy for the speaker. It demands that the mediators set aside their own thoughts and agendas, suspend evaluation and judgment and try to understand the speaker\'s points, emotions and attitudes. This is a skill that permeates the entire Mediation process and it is key to building rapport.


When conflict parties talk about their views of the conflict, they often get lost in the details. Sometimes they insult, accuse and attack the other party. The mediators can prevent this by paraphrasing the narrations of the conflict parties, that is, by restating the content of what has been said in their own words and laundering the wording of insults and accusations.

Purpose of Paraphrasing:

•	Highlighting the key points of a narration. 
•	Structuring a narration: the mediators identify different elements of what has been said and place them in relation to each other, e.g. by reflecting the degree of importance attached to them. 
•	Communicating empathy and understanding: the mediators demonstrate that they have grasped the speaker\'s meaning. Giving the conflict party a means to check whether the mediators have understood their message correctly. 
•	Creating clarity: the mediator\'s paraphrase gives the speaker an opportunity to look at the conflict with a certain distance and to gain a better understanding of his/her own perspective. 
•	De-escalation: the mediators \"launder\" the narration of vicious or insulting statements to make it less inflammatory, while retaining the basic points that were made. Thus the mediators assist the conflict parties in moving beyond rhetoric and threats. 
•	Slowing down communication: when the conflict parties have embarked on a rapid exchange of insults and accusations, paraphrasing slows down the pace of a narration and changes its tone. 
•	Moving the conversation to deeper levels: a good paraphrase often brings out further, more reflective statements from the speaker
When you paraphrase, you: 
•	Restate in your own words the basic facts of the speaker\'s message, e.g. \"Your crops have been destroyed again by your neighbor’s cattle.\"
•	Draw attention to interests, needs and feelings: when you detect interests and feelings in the speaker\'s message, it is important that you bring these to light, e.g. \"You said that you feel betrayed by the other party.\"
In doing so, 
•	Use your own words and do not act like a parrot, e.g.: Conflict party: \"I resented it deeply when l found out that they had gone behind my back. Why can\'t they come and talk to me, and give me a chance to sort things out with them?\"
Paraphrase: “You were quite hurt that they didn\'t come directly to you to resolve things.” 
NOT: “You resented it deeply that they went behind your back. You wish they had given you a chance to sort things out with them.\"
Be brief and succinct: A paraphrase should always be shorter than the speaker\'s own statement, so keep to the key elements of what has been said and leave out unnecessary details and explanations. Launder the speaker’s language, i.e. rephrase the statement so that insulting words or accusations are omitted, e.g.:
Conflict party: \"He is a liar.\" 
Paraphrase: \"You find it difficult to believe him
Highlight the positive, e.g.: 
\"You think it is a good sign that your neighbor has agreed to this mediation.\"

Do not give your own personal opinion and only make suggestions to the degree that it does not violate the principle of self-determination. Do not say anything that might sound as if you agree with the speaker: showing agreement or even support will lead the other party to protest or even withdraw from the mediation.

Focus on the Speaker, e.g.: \"YOU felt...\" – \"YOU are saying...\" – \"YOU believe...\" and not: \"I know exactly how you feel.\" – \"I\'ve been in situations like that myself.\"

Always verify whether your paraphrase is correct, e.g.:
 \"Is this impression correct?\" \"Does this adequately reflect your viewpoints?\"

Reframing is a technique to re-word or re-state what the disputant or client has said more constructively.  This assists the client in re-evaluating their perspective, or clarifying what is important to them in the conflict situation.  Not only does reframing help the client better understand their own thoughts, it also assists in clarifying and de-escalating the conflict for the other client(s) and lawyer(s).

Reframing should be done is a way that allows the client or opposing party the opportunity to clarify or correct the reframe if it does not adequately identify their needs.  Reframing should not distort the content of what the client or opposing party is saying.
Reframing can be useful in the following ways:
•	To tone down on a blaming or critical statement and state in a positive frame.
•	To shift from negative to positive.
•	To shift from past to future.
•	To identify the needs or concerns behind a stated position, which helps the clients to analyze their own perspectives and clarify their thoughts.
•	To identify the issue that needs to be resolved. This can be the start of building an agenda.  Be careful not to suggest or imply a solution in your reframe.
•	To emphasize common concerns or common ground.
•	To acknowledge emotions but not as a central focus.
A reframe should be “acceptable” to the client or opposing party since it helps clarify perspectives and shows that there is an issue to be resolved.
Be careful, however, not to simply reframe a position just by toning it down.  This will only serve to anger the client or opposing party, and solidify that position.
Examples of Reframe Questions:
1.	So, it is important to you that…
2.	What I understand you to say is…
3.	What you are concerned with is…
4.	What you need to see here is…
5.	Your goal would be to…

Dear Marvin,

thank you for all the time and insights.

Yes, in Mediation there is so much going on behind the scene. By saying this, I mean that there are many things you can not learn – you just have it or you must try to compensate it. For example the naturally born credibility, the ability to enter a conversation easily, and to most important skill, namely to be flexible and to adapt to what is going on. Of course, therefore you need a certain level of mindfulness to identify dynamics etc. It is an endless chain of skills, impact, and making an effective difference.

Further, I would like to point out that I believe that there is a difference between hearing and understanding what someone says. Obviously, we can only hear what someone says, because understanding a message in the way the sender communicates it is very hard or possibly not manageable. But we can say: ‘I heard what you said, to me it means …. So, what does it mean to you or what do you want to say with it?’

I hope this helps.

BR, Daniel