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<xTITLE>Say That Again – Six Ways to Harness the Power of Your Words in Mediation</xTITLE>

Say That Again – Six Ways to Harness the Power of Your Words in Mediation

by Terri Breer
July 2021 Terri Breer

Because there is so much power in our words, we can use them to do a whole lot of good particularly when we are working as professional mediators.  Here are six practices to harness the power of the words we speak in mediation.

1.  Use Your Words to Encourage

One of the best ways you can use your words during mediation is to encourage the parties.  Let them know that they are doing the best thing for themselves and their children by deciding to mediate and support them by reminding them that they have chosen the best way to resolve their divorce.  Point out how well they worked together to come up with an agreement on a particular issue.  You might let them know that based on how well they worked together to divide their marital assets it is obvious to you they will be able to resolve the rest of their issues if they continue to work together so effectively. When we speak positive, encouraging words about the parties and the mediation process we can build up the parties’ confidence in their ability to settle their entire dispute.

2. Compliment the Parties

Closely aligned with encouraging the parties is to be sure to compliment them when they show flexibility by making a particular settlement proposal, or if you observe that they are doing a good job managing their emotions be sure and say so.  Let them know how impressed you are with their hard work during the mediation session.  If you observe one party making a big concession regarding a particular hotly disputed issue you should tell them that you are proud of them for taking such a courageous and positive step in the settlement process.  If the parties are being respectful, empathetic, and good listeners be sure and compliment them on their thoughtful conduct.

3. Learn When to Stop Talking

Before you start to intervene during the parties’ discussion regarding a particular issue, ask yourself how much you really need to say.  Are the parties getting off track and into an unproductive discussion, or is there a benefit in allowing them to really get into the heart of the conflict?  While a mediator needs to speak up and let the parties know when the mediator thinks it is time to stop the direction of their discussion before they go too far into escalating their dispute, it is equally important for a mediator to know when to let the parties go where their discussion leads them.  

4. Speak the Truth 

Let the parties know when they are not being cooperative or kind to the other party.  Point out to the parties if you are observing behaviors in the parties’ negotiating tactics that are not productive or even just mean.  Tell Husband or Wife that they are not being transparent or when they are being manipulative or controlling.  When there is a “black and white” legal rule that applies to a particular dispute, do not be afraid to provide the parties with the specific legal rule applicable to their issue just because it may be more favorable to one party or the other.  You are not being bias just because the law supports one parties’ position and might be damaging to the other parties’ position.   When there is a neutral, indisputable statute applicable to a particular issue it can be a useful tool in the mediator’s toolbox.  When the parties have realistic expectations of what might happen if they are unable to resolve a particular issue, they are able to make a more informed decision.   The parties can handle the truth and usually want to hear it.   If the mediator is not comfortable discussing a legal rule with the parties, the mediator should suggest that the parties talk to a consulting attorney if they want more information about a particular legal rule or “truth” about what might happen if the issue were to be litigated.  

5. Remind the Parties to Thank Each Other for Their Contributions

Sometimes the Wife just wants Husband to acknowledge the contribution she made to his career when she left college and worked full time so that Husband was able to attend medical school, or Husband will want Wife to acknowledge how hard he has worked building his business to provide the parties a beautiful home.  The mediator should suggest that the parties take a moment and thank the other party for his or contributions to the marriage.   Remind the parties to be thankful and say so.   The fact that the parties are terminating the marriage will often cause them to overlook the positive things that were achieved during the marriage and that one or both of the parties should be recognized and thanked for their contributions.  They should also be encouraged to thank each other for a particular concession or kindness that is extended to them by the other party during the mediation process.

6. Thank the Parties for Their Contributions to the Mediation Process

The mediator should always let the parties know when their hard work has contributed to the successful mediation.  If a party has provided a detailed spread sheet itemizing all the deposit accounts and retirement assets and gathered all the documents that the mediator requested the mediator needs to thank the client for his or her efforts.  If the mediator observes that the couple has listened attentively and implemented the mediator’s suggestion to improve their communication with each other so that it is more cooperative and respectful, or if the mediator recognizes that a party has worked hard to manage their emotions throughout the mediation, the mediator should thank the parties for implementing the mediator’s suggestions and for their hard work.  When the couple has successfully resolved all the issues in their divorce, congratulate them, but also be sure and thank them for their efforts in reaching a settlement and for their contributions in making the mediation process a success.  

When you encourage and compliment your clients, if you know when to stop talking, if you speak the truth and instigate thankfulness you will discover the power of your words in the mediation process. 

Biography


Terri Breer, attorney and Mediator, has been a licensed attorney for thirty-five (35) years and has experience as a civil litigator, mediator and collaborative attorney handling divorce, family law, real estate, and business matters.  For the past 28 years her practice has been devoted to mediation of family law disputes, collaborative divorce, and limited scope legal services in uncontested divorce. She has written several articles on alternative dispute resolution and the need for change in the current family law adversarial system.  She chaired the Alternative Dispute Resolution Section of the Orange County Bar Association in 2014 and is serving her second term as Board Member of the Southern California Mediation Association (SCMA).  For the past four years she has chaired one the premier events for family law professionals, the SCMA Family Mediation Institution.  

Ms. Breer is passionate about changing the way people divorce and keeping family law disputes out of court.  She is active in training, workshops, and networking for divorce professionals who share her passion.   



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