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Mediate.com

Listening Is Not Enough!

by Leo Hura

From the Small Claims Courts blog of Leo Hura.

Leo Hura

As a mediator I get job satisfaction from hearing “thank you for helping us reach agreement” and remorse at hearing “we just wasted three hours and got nothing done.” As a mediator I am trained and experienced in listening.  The real challenge is not whether I’m a good listener but whether I hear, react, and utilize what clients are telling me to assist them to find common ground and achieve agreement.  This essay discusses hearing insensitivity and suggests a few tools which may mitigate the problem.

 

A colleague of mine related the following experience which involved two former partners, P1 and P2, who created a one of a kind asset each continues to need after their partnership dissolved.  They share.  They have a formal agreement.  They came to me because they are having trouble living with the agreement and one blames the other for the failure.

 

In joint session P1 stated that further clarity in the existing agreement is needed to solve the problems being encountered. P2 told me the terms of the present agreement needed to be reversed or a new agreement written.  Since it is my practice to move to separate sessions after the opening I asked P1 to stay and P2 to wait in the next room.  For one or more of the reasons discussed below, I worked with P1 on a modification of the existing agreement for the next hour.  You can surmise the rest.  When the mediation session had been completed we were back full circle with each disputant stuck in their original positions.  The clients were disappointed. I was left there scratching my head.  How was this situation created, the problem not discovered nor acted upon until it was too late to execute a change in strategy?  Why do we miss hearing the seemingly obvious? After discussion my colleague opined:

 

We’re taught to be good listeners. 

  • Subconsciously I let my judgments about the case get in the way.  Maybe I thought P1’s position was so logical that the only thing needed was to communicate the fine tuning of the existing agreement to P2.  Once that was accomplished P2 would naturally realize their thinking was off-base.
  • Maybe I did not realize these positions, if held throughout, would lead to impasse. I needed to move to utilize dealing with impasse techniques from the get go.
  • Separating the two parties and going into separate caucuses was a costly mistake. Caucuses are valuable but in this case not only were they inefficient but the separate sessions sapped the energy out of the mediation and turned destructive.
  • I chose the wrong party with whom to start the separate sessions. 
  • I did not reflect, reframe, summarize, nor put together a problem statement which would have given both myself and the clients an opportunity to validate we were on the same page.
  • Whatever happened, after going into caucus the mediation failed.  I also met separately with P2, who listened carefully to what was being proposed in general terms, answered the questions which were being asked. P2 looked increasingly perplexed as time went on, and concluded by restating his original position.  Finally when I asked P2 whether it would be worthwhile to work on the details of fine tuning the existing proposal, P2 rejected the offer.
  • When I went back to P1 and told them of the dilemma it was too late.  P1’s mindset already anticipated the remaining discussions would revolve around fine tuning the original agreement.  When I disclosed P2’s position had not changed from his original position the mediation was over. 

 

From there we moved towards a discussion of what steps could have been taken to avoid such an unfortunate outcome.

 

After this we discussed our responses to the question - what can we, as mediators, do to not only listen but also to hear.

  • Use visuals to supplement the verbal communications.  In this case the visual could have been as simple as:

 

P1

Let’s fine tune the existing agreement

P2

Let’s reverse the terms of the present agreement or write a new agreement

 

  • Reframe, reflect, as a means of validating I heard what each client has stated correctly.
  • Resist making judgments that one party’s position is the only logical option.  My perceptions and theirs may be totally different because there are circumstances in the case which they know which I do not know.
  • Gauge the value of each separate caucus as it pertains to the case.  In the example above it might have been prudent to get a general understanding of the “fine tuning” needed to the existing agreement followed by a short session with P2 to do the same with regards to their proposal.  This might have given each party a chance to validate the mediation session was going in the right versus wrong direction.
  • When there is no change in position on either side move towards avoiding impasse techniques rather than continuing down a dead end.
  • No matter what may be stated, one client or both is going to be sensitive to the amount of time we are spending with them, their opponent, and overall. I need to be a conscientious time manager.
  • Be flexible and open minded.
  • Take good notes.  Organize notes in a manner which allows for comparative analysis and the addition of data as new information becomes available to fill in the gaps.
  • Ask open ended probing questions.
  • Be empathetic but keep the discussion moving narrowing the focus as time goes on. 
  • Keep the waiting party in the loop.  At certain points in a caucus step out and have a few words with the waiting party.  Develop your own approach towards updating the waiting party and to gauge whether or not they are becoming overly edgy, downright uncomfortable, or even hostile.
  • Work to get the parties into joint session and keep them there.  Use separate caucuses only out of necessity.

 

Despite the disappointment with the case we ended the discussion by noting the need in our field for continuous improvement.

Biography


Leo Hura, Mediator -JD - Facilitator -Conflict Resolution Training Program Developer practices mediation out of Honolulu Hawaii.  An experienced mediator Leo has turned his atttention to developing training programs designed to inform, educate, and promote the use of peaceful means for avoiding, preventing, resolving conflict in business with business, business with client, and interpersonal relationships.

Leo writes extensively on his blogs, has written two booklets for clients on mediatin and small claims court claims, and numerous articels about the practice and use of colalborative means to resolve conflict. 

http://email.mediate.com/blogs/mediatewithkh



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Website: www.mediate.com/mediatewithlh

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