Mediation Keys to Mediator Success: Ground Rules

by Dudley Braun May 2012

Preface
Some words, spoken at the right time, in the right way, in the right context, can be particularly powerful. They can sometimes cause a new thought or unfreeze a position. This compilation is intended to assist trained mediators and add possibilities to their already extensive vocabularies. It offers many ‘tried and true’ expressions in a variety of contexts to help them unlock hidden possibilities and improve mediation successes.
These sayings will help the mediator:

• Get information
  
• Improve rapport
  
• Broaden perspectives
  
• Alter viewpoints
  
• Elicit decisions

The questions and statements presented here are simply given “unadorned”, compiled from a variety of sources and mediation experiences. Conventionally, little scenarios and dialogue vignettes might have been invented to embed them in context and bulk up the book. While such a treatment might have added a lot of entertaining “color”, authenticity would have been the tradeoff. The authenticity of the straight “lists” of bare quotations are easily judged for themselves, suitable for many contexts. In this sense the book is offered like a handbook or reference manual. While words play their part, no less important are: Pacing, pausing, hesitation, facial expression, tone of voice and body language. For example, most people, when they hear a question asked in the tone of a statement (instead of the usual rising tone at the end) feel less defensive and answer more openly and truthfully. Silence also works wonders.
Other important mediator skills are assumed to have been acquired other ways. Skills such as when to separate the parties; when to go over facts again; when to tell stories; when to let “negotiation fatigue” help things along.
Although this material can be useful in many types of cases, the primary focus is on civil cases such as contracts, professional services, personal injuries, torts ....etc.
If you find the book useful, I’d love to hear about it. Please pass along comments and suggested additions for a future edition. Send them to: Dudley_Braun@Hotmail.com

How to Use This Collection --

From this random-order collection of expressions presented one right after another, simply select and use any seemingly helpful expression wherever they are appropriate. Types of situations are roughly categorized into Sections denoted by an underlined subtitle. Some expressions may strike a chord of usefulness more than others. Slide the reading eye down past the ones that don’t click, hunting for the ones that do. Since there are so many expressions and since some convey the same idea with different wording, a personal working set might be selected for easy access and remembrance by highlighting or extracting favorites. [Words in these brackets] are editorial asides for the reader, such as [When a hard position is stated] then “.....”
Enrollment and Ground rules – Supplementing “Mediator’s Standard Introduction”

"This is a process in which the two of you have come together to present and discuss a problem or dispute that’s going on. Then you’ll have the opportunity to present and discuss solutions for resolving the matter.”

“A few ground rules are important to help the process flow smoothly: One person at a time speaking, no interrupting, no name-calling, no making faces or emitting rude sounds of disgust or disbelief. Basic common courtesy will help a lot. Agreed?”

“We’ll make progress more quickly if we take care to avoid ‘linguistic irritators’. Okay?”

“Do you want to achieve an out-of-court settlement?”

“Do I have your commitment to listen to each other; work hard toward a resolution; and bargain in good faith? Good faith includes keeping to the truth about the facts.” “Check whether you have whatever information you need to settle the case?”

“The final money terms and your success depends on taking into account the way the other party feels about how they’ve been treated during negotiation.”

“Although tangibles like the money settlement are important; intangibles such as pride, reputation and good will are very real and very important as you craft a resolution together.”

“You’re both competent to come to an agreement.”

“Today we’re not going to conduct this as a “contest” to be won or lost. That’s not what we’re about. Instead, we’re going to discover the “best voluntary solution”.”

“Today is the day to look forward, not dwell on the past.”

“You work creatively toward finding a resolution that feels good or at least workable and lets both parties leave satisfied or with an appealing solution.”

“I’m not going to try to solve your dispute or your problems. Your job is to figure out how to sufficiently take into account each other’s interests so you can craft a mutually satisfactory agreement.”

“Part of my role is to help you avoid common mistakes, such as: - Insensitive or pugnacious remarks - Guessing what the other party will do or find acceptable - Getting too competitive toward winning instead of compromise - Giving up too soon.”

“I’ll guide the process and you’re welcome to suggest process changes at any time.”

“I’ll be neutral but not passive. Hopefully I can point out things neither of you have thought much about.”

“What kinds of things do you want to happen or not happen in this process?”

“How would you like this to go?”

“We all want to be heard with complete attention. I encourage you to really listen to each other and avoid the temptation to anticipate the speaker’s endings. Keep up your focus on the speaker’s words, not on what you’re going to say next.”

“It’s particularly useful to ratchet up your active listening skills and listen intently to what’s beneath the words.”

“Listen for anything new; for something you didn’t know before.” “Patience, flexibility, and self-determination are the keys of this process.”

“My job is not to tell you the answer. That’s for someone wearing a long black robe. I just help people figure out the puzzle pieces and how they might line up.”

“What works is: Courage and Compassion; Humor and Humility; Tolerance and Understanding.”

“We have the best chance of a good resolution if you both are able to talk together constructively, exploring and understanding each other’s interests and needs.”

“The way you get a solution is to cooperate with each other as you explore what might work for both of you.”

“Sharing interests and needs will assist you two in brainstorming options together.”

“The solution you create together doesn’t have to be what a judge would order.”

“I’m going to ask you to reflect back what interests and needs the other side expresses.”

“Conversation is a learning process where new helpful information will surface and be considered thoughtfully.”

“You may be adamant on one issue, but other issues may not be simply black or white.”

“You may be at an end point, but the other party may see things in a new way based on the discussion we’re going to have.”

“The more information you get, the wider your frame of reference and therefore the more possibilities you can see.”

“I think we can achieve a mutually satisfactory agreement efficiently and in a friendly way. As I see it, in order for us to do this we have to be willing to listen carefully to each other, share information about interests, and brainstorm for value creation ideas, not just dividing up a given amount. “

“At some point later it might be useful to spend some time looking at best and worst possible outcomes and probabilities.”

“It’s helpful to try to let go of the past in favor of concentrating on the present and the options available to you right now.”

“We’re going to experiment, try things and adjust until a workable combination shows up.”

“[When joint session is resisted] The other party is offended. They don’t want a joint session. I want you to meet them. I don’t see any disadvantage at all in having a joint session. It doesn’t have to be contentious. What is there to talk about? I told them ____.”