Effectively Making Yourself Understood in Mediations

August 30, 2018By Bill RatliffUncategorized

In my last post, I mentioned that I enjoy reading the work of former FBI hostage negotiator, and now CEO & Founder of the Black Swan Group, Chris Voss. In his blog, The Edge, he writes frequently about effective communication techniques and tactics.

It’s a given that communicating effectively is a fundamental requirement of our work as lawyers — particularly in litigation. I know I give a lot of thought and attention to being understood. Whether you’re writing a brief, arguing a case to a jury or drafting a contract, being clearly understood is critical to your success. At the same time, it’s equally important that we understand others.

As a mediator, I often play the role of interpreter for parties. I’ll get information from one side in a caucus, and, with their permission, I’ll share it with the other side. As an interpreter, I routinely find it necessary to eliminate excessive negativity in the messages I’m asked to share, before communicating those messages to the other room. I’m talking about the kind of opinionated antagonism that does nothing to support a position, but can easily inflame the other side’s emotions — which does nothing to help resolve a case.

In my mediation course at the University of Alabama’s law school, I teach students two techniques I use: Restating and Reframing. The terms are often used interchangeably, and in some ways the techniques are similar, but they’re fundamentally different.

Say that again, only nicer.

When I restate to a party or advocate what they’ve said to me, the primary purpose is to let them know they’ve been heard. Additionally however, I’ll often restate what I heard, using more neutral language — seeking to focus on a party’s interests, while removing blame and accusatory language from their statements. After restating what’s been said to me, I’ll follow-up with a question such as, “Did I understand you correctly?” I’ll pursue that line of questioning until the speaker agrees that I’ve correctly restated what they said to me.

Chris Voss, refers to Restating as “Mirroring.” For you Scrabble fans, the $50 Word for Mirroring is Isopraxism.

When Mirroring, you repeat the last three words (or the critical one to three words) of whatever someone has just said. Voss describes it as a neuro behavior in which humans copy each other to comfort one another. It’s an unconscious behavior, and it’s a sign that people are bonding and in sync. It establishes a kind of rapport that leads to trust and understanding.

An example Voss gives:

A caller asks: “Do you have a few minutes to talk?”

Response: “A few minutes to talk?”

It is subtle and may seem unnecessary, but it works to communicate you are listening and understood.

Same message, new focus

In Reframing a message, the mediator states disputed issues in a more neutral manner — with a focus on potential outcomes. The purpose of Reframing is not only to change the harsh effect of antagonistic words, but also to create a new dynamic in a mediation. Reframing is useful in changing the focus of a statement from – –

– – blame and guilt to problem solving.
– – past to future.
– – judgmental to nonjudgmental.
– – position to interest.
– – ultimatum to aspiration.

Two examples of Reframing:

ORIGINAL STATEMENT: “I can’t believe this hospital would continue employing practices that allow patients’ well-being to be jeopardized for the sake of money.”

BECOMES: “Mr. Smith, I see that you’re concerned about how your mother was treated by the hospital staff.”

ORIGINAL STATEMENT: “I want $7500 for the damage to my car that this stupid, irresponsible teenager caused.”

BECOMES: “You believe the accident was not your fault and you need $7500 to fix your car.”

Think about what really matters.

Together, Mirroring and Reframing can be effectively used in any communication (whether with your spouse, your children, a client or an adversary) where you want to show that you understand someone, or where you seek to focus a party on their end goal (or their interest) rather than on their position. And isn’t the end result what matters most in any dispute?