Last month I had a commercial mediation that took an unexpected turn. It began as most of my mediations do – everyone gathered in a conference room, I framed the discussion with an opening statement. Then, each of the parties explained their view, aided by their counsel. I looped and summarized what I heard until all sides were nodding. Then I asked to meet with each side privately and begin the process of moving the parties toward the possibility of settlement.
During one of caucuses, I asked one of the principals about the value of meeting in a joint session as the first mediation step. I didn’t know what the response would be and would not have been surprised if the person said that it wasn’t that valuable.
However, what happened after I asked the question really surprised me. Before the principal even opened her mouth, the attorney leaped forward as if I had fired a bullet at the client and yelled “Don’t answer that!!! That is an inappropriate question, and this mediation is over!” With these words, the attorney began to collect her papers and motion to her client to do the same.
I was stunned. I had mediated many cases and have never seen such a charged response to such a seemingly neutral question. I quickly collected myself and asked if I could meet with the attorney in private. After some coaxing on my part, the attorney agreed to briefly speak with me.
We went into a small conference room and I asked what caused the attorney to defend her client so staunchly. I expressed my honest surprise and assured her that I was only trying to find out what happened. After some hesitation the attorney told me that any conversations about the value of the case should be discussed with her, not her client.
Suddenly the exchange made sense to me! I explained that the word “value” in my question meant “importance” and was not intended to elicit a dollar figure. The attorney accepted my explanation and the mediation continued.
As I reflected on this incident, I began to think about how often words and phrases, all spoken in English, carry such different meanings for the speaker and the listener. As mediators, we are trained to listen for these differences, and be aware of how our questions can land. When I train new mediators, I always stress these skills.
Nevertheless, sometimes wires get crossed, and an innocently uttered phrase can land very differently than it was intended. So, what’s a mediator to do?
To me, awareness that a miscommunication can happen despite our best intentions is the first line of defense. It’s no-one’s fault, it’s just a part of life. Taking on this perspective can help a mediator keep her/his balance when an incident actually occurs.
Keeping the ego in check is another piece of the puzzle. I vividly recall feeling offended by the attorney when “she misunderstood my good intention” of trying to engage her client in a “constructive dialogue.” I was able to shake off that feeling, and was able to approach the attorney as a colleague in the process. Without making that mental shift, I would have remained seeing her as “against me” and would have surely lost her willingness to cooperate further.
Remaining curious is another mental tool I find helpful. Following the jolt of indignation I felt, I remember becoming truly curious about what happened. I felt confident that I didn’t say anything wrong, so what could have caused this reaction? I believe it was that sense of curiosity that made it possible for the attorney to engage with me and help me understand.