Listening In At The Mediation Table: Books That Teach Readers How To Talk Like A Mediator

Ready to trade up from the role play simulations they participated in during their basic mediation training, new mediators look forward to the chance to observe actual mediations, where they can watch experienced professionals mediating real-world disputes. However, as dispute resolution expert and ADR blogger Tammy Lenski recently reminded her readers, finding such opportunities isn’t easy.

Always a collaborative spirit, Tammy was kind enough to share as a download on her site a text that she uses herself in teaching new mediators, What the Fly Heard: What Mediators Say Behind Closed Doors. Written by mediator, facilitator and conflict coach Sandi Adams, MSCM, this book provides the next best thing to observing a real mediation: it pulls up a seat at the mediation table and invites readers to listen in.

Tammy’s post reminds me of two other texts that also allow readers to be the proverbial fly on the wall of the mediation room. What follows is a closer look at all three of these texts – What the Fly Heard – and two more.

What the Fly Heard: What Mediators Say Behind Closed Doors, by Sandi Adams, MSCM, is the text that I wish I had in my hands during my own basic mediation training. Adams writes with authority and sincere encouragement, as she walks readers through the mediation process, offering numerous examples of suggested language along the way. One of the biggest challenges for new mediators is how to reframe intractable problems into issues that can be solved, a technique that invites disputants to see their conflict in fresh ways conducive to problem solving. Adams is ready with examples of difficult disputes, including one involving neighbors and another an Americans with Disabilities Act grievance, with suggestions about how to frame the issues that each present. As a bonus, she also includes information on the difficult issues of impartiality and confidentiality, and recommends resources for mediators committed to professional development.

Together with recommended “do’s”, Adams also warns about potential traps for unwary flies, including statements that can inflame or entrench. The sections titled “Flies in the Ointment – Sticky Comments to Avoid” and “You Could Get Burnt – Don’t Fly Near These”, give examples of statements mediators should avoid. It might have been even more helpful if Adams had suggested alternatives here that would be more appropriate mediator choices. However, Adams, a conscientious professional, makes clear that her book is not a teach-yourself text, with an important reminder for readers that

… this collection is not meant to replace training in any way. It is provided, in fact, as a follow-up to training and as a supplement to a training manual. The examples are to provide modeling only. Training, manuals, and supervised experience are needed to understand the reasons behind certain language and statements, when they might be appropriate and useful, and how to decide when and if mediator intervention is needed at all.

This book, now out of print but fortunately still available as an affordable (and ecologically friendly) PDF download on Tammy’s site, serves as a clearly written, concise orientation to the basics of mediation practice, making it an indispensable teaching tool for new mediators. Like a travel guide for international tourists, What the Fly Heard covers the essentials, and suggests useful phrases for each stage in mediation across a variety of settings, making it an accessible resource for the beginning mediator trying to gain fluency in what can seem like a foreign language. In addition, its realistic examples, many drawn from neighborhood, landlord-tenant, family, and small claims disputes, make this a most welcome addition to the training library of community mediation programs and a dependable text for those who supervise and train new mediators.

While What the Fly Heard is a concise, user-friendly traveler’s guide,  Challenging Conflict: Mediation Through Understanding, by Gary Friedman and Jack Himmelstein of the Center for Mediation in Law, is a mediator’s playbook, with detailed descriptions – and, amazingly, transcripts – of each stage of the mediation process, from contracting to agreement. This book presents the “understanding-based approach of mediation”, a model of practice which controversially rejects the use of the caucus.  It seeks to help parties understand their own interests and other perspectives more completely through direct dialogue, and stresses the importance of parties in conflict working together to make decisions and address the issues they face. It recognizes their joint responsibility for determining whether and how the dispute will be resolved, supporting parties in crafting solutions that are the product of fully informed deliberation. This model of mediation presents a radical departure from the mediation that lawyers and jurists are most familiar with, and will prove challenging, as the authors caution, to the disputants and to the many lawyers who are used to mediation as a kind of non-binding arbitration.

Across 10 case studies that involve a wide  variety of disputes  – from the San Francisco Symphony to a family-run ranch in South America – the authors walk the reader through the stages of mediation. Through the transcripts of dialogue that Friedman and Himmelstein provide, we hear the voices of parties and listen as the mediators, with patience, gentle persistence, and an abiding respect, help parties face emotionally charged conflict to find a sane, humane way out of the wilderness of their dispute. Friedman and Himmelstein illuminate their approach to the mediator’s stock in trade, active listening – a technique they call “the loop of understanding”, and throughout the book demonstrate it repeatedly and masterfully, using it to propel parties and discussions forward. How they handle strong emotion in the mediation room may come as a shock to mediators used to caucusing; Friedman and Himmelstein never seek to contain or cut off emotional expression; instead they see it as an opportunity to take the dispute to a deeper level, locating and untangling its roots.  One addition would make this book an even better resource than it is: an index, so that finding information is easier for readers who return to the book to revisit techniques or concepts.

One caveat: published jointly by the American Bar Association and Harvard Law School, this book is about mediating sophisticated cases involving legal issues and lawyers. The authors strive to “make the law people size”, ensuring that the law doesn’t eclipse other issues, and enabling parties to use the law to inform not control their choices. Nonetheless, discussion of the law plays an integral part in this model of practice. Mediators uncomfortable about discussions about law and legal risk analysis may find the emphasis on the importance of having the “legal conversation” off-putting.  The authors prefer to have that conversation first, ahead of discussion of other issues – although in one case the reader listens in as parties refuse, pushing the authors to reluctantly postpone the discussion of legal issues until later.

If such emphasis leaves you uneasy, be assured that Challenging Conflict is more than a text on mediating legal disputes. And whether you agree with the authors’ approach to the caucus or not, their emphasis on the human dimension to conflict makes this a book worth reading. The numerous transcripts throughout the book demonstrate the complexity and nuance of conflict and the artistry of the mediator’s craft.

Although the case studies involve disputes over complex interpersonal and business issues, potentially intimidating for beginners, this is still a book with something to offer mediators at all skill levels, from the new mediator to the experienced trainer looking for resources for his or her students. The transcripts throughout allow readers to listen in to not just phrases or snatches of conversation, but to entire conversations between mediator and parties, so that readers hear how the mediator responds to what is unfolding in the moment, which gives a realistic sense of the ebb and flow of dialogue at the table. They offer numerous examples of “mediator speak” as the authors demonstrate their skills in helping people find solutions to the seemingly intractable problems they face.  These detailed transcripts serve as the next best thing to being a fly on the wall in a real mediation.

A third book also invites readers to sit at the table: J. Anderson Little’s Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes. What makes this book unique is its focus on the dynamics of traditional bargaining in issues over money in litigated cases, but with a twist: providing the reader with advice on mediating such disputes in a facilitative not evaluative way. Transcripts throughout the book give real-world examples of the negotiation roadblocks that await and how a facilitative mediator can subtly but surely generate movement and overcome impasse when talks seem stalled out.

This book serves as rebuttal to anyone who thinks that money disputes in civil litigation are best resolved through evaluative mediation – with its heavy reliance on caucusing, dominance by lawyers, lack of direct discussion between parties, and narrow focus on legal issues, which ADR scholar James Alfini once complained “sacrifices effective justice for efficient deal brokering“. Little proves that a facilitative approach can work with money disputes, explaining his own personal philosophy about mediation practice, which is reflected throughout this book:

Before we mediators strive for settlement; before we strive for solutions; before we strive for empowerment, recognition, or transformation; before any of these, we would be well served to strive first for understanding.

Amen, brother. Recognizing that sometimes people will resist integrative approaches to bargaining, Little offers insights into the rhythms of distributive negotiation, decoding for mediators the messages embedded in proposals, rejections, and counterproposals, with recommendations on how to facilitate party movement in a range of common bargaining situations. Using numerous examples, Little explains how familiar mediator tools, such as questioning, reframing, brainstorming, and observations can be put to good use. If you’ve ever wondered what to do when one party says, “I’m not going to bid against myself”, struggled with the question of “Who goes first?” in making an offer, or felt stymied when a disputant protests, “Do they think I’m stupid?”, this is the book for you.

Little won me over immediately with his express rejection of any mediation orthodoxy that anoints a one-size-fits-all approach or declares there to be but one Right Way to mediate – something which critics of Challenging Conflict will no doubt find refreshing. Instead, he assures readers that “the thesis implicit in these pages is that there is no single model of the mediation process that is useful in all types of cases”. Little’s approach  emphasizes flexibility and an attuned sensitivity to parties’ states of mind.

Little writes to empower two audiences: mediators with experience in civil litigation but who feel that they are mere “messengers” doing little more than helping parties “swap proposal after proposal” but who strive to be more to their clients; and mediators whose work focuses on the “preservation and enhancement of relationships” rather than the litigated case. For the former, he declares his goal to be “to help them better understand the dynamics of money negotiations,…to build a model of the mediation process that will serve as a road map when traditional bargaining is unavoidable, and to describe how they can assist the parties with traditional bargaining in a facilitative, rather than a directive, way.” For the latter, Little understands that even in family matters “there will be negotiations about money that resist the mediator’s best effort to reframe them into problem-solving discussions.” For these mediators, Little modestly expresses his hope that they “will find in this volume a nugget or two to serve as a supplement to other approaches that are more appropriate for mediations conducted in family or workplace settings.” Indeed they will.

Although this is not a book for new mediators, I recommend this book (and also Challenging Conflict for the same reason) to participants in the basic trainings I teach, particularly those who have experienced only evaluative mediation conducted primarily through caucusing and who doubt that a facilitative approach could work “in their world”.

                       

Diane J. Levin

Diane Levin, J.D., is a mediator, dispute resolution trainer, negotiation coach, writer, and lawyer based in Marblehead, Massachusetts, who has instructed people from around the world in the art of talking it out. Since 1995 she has helped clients resolve disputes involving tort, employment, business, estate, family, and real property… MORE >