From the blog of Nancy Hudgins
It occurred to me that the skills we were teaching these new mediators were also skills that would be useful for lawyers in mediations in which joint sessions are held. Here’s the mnemonic:
A = Attitude
A = Acknowledge
C = Clarify
E = Empathize
S = Summarize
Attitude is how you prepare yourself (and your client) for the mediation. It’s often helpful to be respectful (Rule of Reciprocity) and open-minded (hey, you might learn something you didn’t know).
Acknowledge means showing that you are listening to the other side. You don’t have to agree with them, but you can show that you’re interested in what they are saying. You can also acknowledge by posture: good eye contact, nodding your head or leaning forward when they’re speaking, etc.
Clarify by asking the kind of open-ended questions we ask on direct examination. I know it’s more satisfying to ask, “When did you stop beating your wife?” but you might learn more by asking, “How has your relationship with your wife been working?”
Be curious. Try, “Could you tell us more about….”
Empathize by meeting people on an emotional level, showing them that you “get” where they’re coming from. You can say things like, “It sounds like you’ve been through a lot.” Or, “It seems like you’re feeling ….” While this is not something we are specifically trained to do as lawyers, it can be enormously satisfying for the other side (which will ultimately redound to your client’s benefit). It sounds counter-intuitive, but try it, you might better serve your clients by empathizing with the other side. (If your client is the type who wants an attack dog for an attorney, I recommend explaining this strategy to them first!)
Summarizing is a good way to make sure that you’ve understood the other side’s point of view. By summarizing, then asking, “Did I get that right?” you are showing the other side that you’ve listened and you are inviting them to let you know if you’ve missed anything.
Persuasion can only take place if the other side is ready to listen to you. By listening first, you’ve set the table.
By the way, if you’re skeptical about whether or not these active listening skills work, try them out on your spouse, significant other, children, other family members, etc. Let me know how it works out.
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