Advocacy Skills In Interest Based Problem Solving Mediation
By Harinder S. Gahir
Lawyer, Mediator and Arbitrator
Former Chairperson CCP Review Tribunals
Former Vice Chair, Licence Appeal Tribunal, Ontario
A. Skills to Solve Problems
In interest-based mediation the lawyer approaches an arbitration as a problem-solving exercise rather than an adversarial face-off. The Harvard Negotiation Project and Professor Roger Fisher’s seminal work, Getting to Yes, offers another model for approaching dispute resolution. Most mediators (with formal training in mediation) are trained in and utilize some variant of this model for principled or interest-based negotiation.1
Fisher and Ury believe that when negotiators bargain over positions, they tend to lock themselves into those positions. The more we clarify our position and defend it against attack, the more committed we become to it. Eventually, a party’s ego becomes identified with its opinion. Once this occurs, we now have a new interest in “saving face” and protecting our ego – making it less and less likely that any agreement will wisely reconcile the parties’ interests.2
“Superior mediation advocacy skills require us to stay away from positional bargaining as it often becomes a contest of will. Each negotiator asserts what he will and won’t do. The task of jointly devising an acceptable solution tends to become a battle”3.
In mediation, a lawyer focused on problem-solving skills does an excellent service not only to his client but also to both parties by helping parties reach a win-win resolution. A good lawyer knows the art of persuasion and can build and defend a logical argument for his side.
Fisher, Ury, and Patton believe, “Mediation lawyers are people first. They know that in all mediations we deal with human beings. Those human beings have emotions, deeply held values, and different backgrounds and viewpoints; and they are unpredictable. Those human beings are prone to cognitive biases, partisan perceptions, blind spots, and leaps of illogic. So are we.”4
As lawyers, we can make this human aspect of negotiation either helpful or disastrous. A working relationship where trust, understanding, respect, and friendship are built can make each negotiation smoother, more efficient and lead to a mutually satisfactory outcome.
Communication in Mediation
Communication is more than the words we use. Our body language and tone of voice often speak louder than our words.5 Negative discussion can lead to frustration, escalation of the conflict and communication roadblocks that would impede resolution.
Communication roadblocks occur when two people talk in a way that neither one feels understood. Research has found four particularly harmful styles of communication, often referred to as the “four horsemen of the apocalypse,” (Gottman, 1999, p.27) because if left unchecked, these styles of interaction can eventually become lethal to relationships.
These styles are:
“Criticism attacks the character or personality of another. While it is normal to have complaints about another’s specific actions, it is very different to put them down as a person because of those actions. Critiques focus on specific behaviors; criticism concentrates negatively on the person’s intentions and character.
Contempt portrays disgust and a lack of respect for the other person through body language, such as eye rolling or sneering, or by name calling, sarcasm and cutting remarks.
Defensiveness is a seemingly understandable reaction that individuals take to criticism and contempt; however, it often escalates the conflict. When we are defensive, we tend to stop listening to the other’s viewpoint, and communication is shut down.
Stonewalling is withdrawing from communication and refusing to engage in discussion. In other words, it is the adult version of the “silent treatment” that young children utilize when they are upset.6
Conflict resolution is impossible without fair, open and effective communication. We engage in conflict through a communication process that is direct and indirect, purposeful and accidental, verbal and nonverbal, symbolic and concrete, interactive and unidirectional. “Good communication is deceptively simple and yet extremely complex. It is the most important skill for conflict professionals to develop and nurture.”7
What changes a conflict situation from an adversarial contest to a joint search for a resolution? Disputants do not necessarily need to feel different about the other parties in conflict. With good communication, they do start to feel a connection with the other parties in the battle. Positive discussion brings an understanding that they need each other to find their way through the conflict.8
Active and Reflective Listening Skills in Mediation
A mediation lawyer is a good active listener. The other side is likely to listen better if they feel that you have understood them. So, if you want the other party to appreciate your interests, by demonstrating that you appreciate theirs. A great start is to paraphrase what you have heard and understood from the other party, before presenting your point of view.
Usually, the reason someone repeats himself or herself in a conversation is that they have no indication that you have taken in what they have said.9 “Reflective listening motivates you to listen carefully. You paraphrase either the information or the feelings the other person is expressing.”10
An advocate who is skilled in active and reflective listening skills pays close attention to what the other party says, to ask the other party to spell out carefully and precisely exactly what they mean and to request that ideas be repeated if there is any ambiguity or uncertainty. Make it your task while listening not to phrase a response, but to understand them as they see themselves. “Take in their perceptions, their needs, and their constraints.”11 “Listening is only powerful and effective if it is authentic. Authenticity means that you are listening because you are curious and because you care, not just because you are supposed to.”12
We must not think that understanding is agreeing, it is not. One can at the same time understand correctly and disagree entirely with what the other side is saying. But unless you can convince the other party that you do grasp how they see it, you may be unable to get them to hear when you explain your viewpoint to them. Once you have made their case for them, they come back with the problems you find in their proposal. If you can put their case better than they can, and then refute it, you maximize the chance of initiating a constructive dialogue on the merits and minimize the possibility of their believing you have misunderstood them. The dynamics of mediation becomes fruitful if the parties believe that the party understands them.
It is rarely enough merely to understand another or even to say, “Yes. I understand.” Others are likely to feel unheard unless you demonstrate to them that you do in fact understand what it is that they believe is essential.13
B. Avoid Reacting and Being Adversarial
Sometimes mediation lawyers are reactive to the proposal and ideas of the other side. Being responsive is destructive in mediation. When we react, we fall into what Ury calls the “3A trap”: we attack, we accommodate (in other words, give in), or we avoid altogether, which often only makes the problem grow, or we use a combination of all three approaches.14 “Mediation requires a change in mindset from reactive and being adversarial because the objective is different. At trial, the goal is to persuade the judge, in a mediation, the goal is to persuade the other party to the dispute. You are not trying to persuade a third party. The person you are trying to persuade is seated at the table with you. If lawyers, who have been trained and primarily practice as litigators, are not conscious of its effects, they will operate subconsciously out of the adversary model”.15 You can state your case persuasively without inflaming the other side, while at the same time assuring the other side that you are there to work hard to settle the matter.16
C. Empathy Loop
William Ury outlined the most crucial skill for a negotiator by stating the following, “if I had to pick just one, it would be the ability to put yourself in the other person’s shoes.” Cultivating empathy is one of the most important skills a successful lawyer can develop. The ability to put yourself in someone else’s shoes will allow a lawyer in mediation to have a better understanding of the other party’s position. The negotiation process can be very complicated even when both parties are committed to a “win-win” situation. For example, in the merger of two independent business, the negotiation process is a classic “win-win” scenario whereas on the other end of the spectrum the negotiation process when two parties are only concerned with maximizing profit can be a “win-lose” situation. However, in both cases negotiating with empathy can provide a considerable benefit.
Research suggests that most people have a strong desire to tell their own story or how they interpret the facts basically, it is human nature to want to tell a story and have that story be understood. During mediation, a lawyer would benefit a great deal even if he/she was not interested in sharing a deeply profound moment with the other party, but still attempting to make a human connection can benefit all parties involved in the mediation.
Furthermore, cultivating empathy allows the parties involved to defuse anger and mistrust and understanding conveys a certain level of concern and respect that sets the tone for a smoother negotiation. Finally, we can never forget that “your empathy may inspire openness in others and may make you more persuasive”,17 which will lead to a more efficient and effective mediation session.
In Beyond Winning, Authors Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello explain the use of the empathy loop which is a logical process that can be applied with a great deal of success in mediating legal disputes. As mentioned previously, by “looping” your understanding of the other side’s perspective back to them, lawyers are more effective during the mediation process. For the empathy loop to be successful it requires patience, paraphrasing, checking your understanding and most importantly giving the other party an opportunity to respond. The empathy loop is a great tool to fall back on when you are trying to demonstrate understanding.18
D. The importance of Emotions and their Acknowledgment
Mediation can become very emotionally charged situations. As a result, a lawyer cannot forget the role of emotional and psychological interests which are at play during a negotiation. Some of our basic needs are the need for recognition and security or the need to feel heard and valued.19
A lawyer during a mediation must understand the importance of managing the emotions between the parties and the ability to stay in touch with the emotional states of the parties are essential tools for successful advocacy.20 Many legal disputes start with minor disagreements and escalate into serious litigation because emotions between the parties are running high and maybe someone’s feelings got hurt. The mediation process in these cases will not go smoothly unless all parties are willing to reconcile that certain parties to the dispute are incredibly emotional. Basically, we cannot have an effective mediation unless parties are willing to address the emotional temperature in the room especially if one party’s feelings have been hurt.
If someone’s feelings have been hurt and they are emotionally charged the best way to handle the situation is by firstly acknowledging that someone’s feelings have been damaged. It generally means letting the other person know that what they have said has made an impression on you, that their feelings matter to you, and that you are working to understand them.21
It is important to note that acknowledgment does not mean agreeing with the other individual, nor does it mean that you must make substantive concessions. Instead, all it really means is that you recognize the other individual’s emotions and are willing to react accordingly. The recognition and acknowledgment process allows parties to shed hostile attitudes towards each other.22
An competent lawyer during mediation will not get caught up in the emotions but instead turn his/her attention to what generates these emotions and try solving the problem via recognition and listening.23
E. Other side’s Understanding of Your Case
Negotiation is a two-way street, above we have highlighted the “empathy loop” and the importance of emotions and acknowledgment when dealing with the other party in a meditation. However, one cannot forget about your position and making sure the other side has understood what you are trying to advocate. Lawyers should never assume the other parties understand your position even if they are responding positively by nodding their heads or responding with a series of “yes, yes” indications. It is critical to the problem-solving exercise that the lawyer ask the other party to demonstrate understanding more completely by sharing their version of the story or set of facts you presented. There are many ways to do this, including the following:24
“I’m worried that I’m not getting my message across. Could you help me out: what did you hear me say?”
“Just to be sure I’m not confusing you, what do you think my point was there?”
“I’ve tried to show you that I understand the situation from your point of view – I wonder if you could do the same. What do you hear me saying?”
All great negotiators or problem solvers exhibit a certain degree of flexibility during the negotiation process. Essentially, flexibility allows us to remain open to differences and will enable us to readjust our position based on changing circumstances. Being flexible does not mean that you will abandon your beliefs or your stance instead it will enable us to develop a board position which can be used to solve a problem or create a new solution. In a mediation environment, lawyers that incorporate flexibility can participate in more efficient and effective negotiation sessions as opposed to a lawyer the enters a mediation with a single-track position with little flexibility.25
G. Broaden Your Options
Negotiation can be a stressful situations but generally, run a lot smoother if the parties involved are developing room within which to negotiate rather than looking for the “Right Path.” Room within a negotiation setting can be made, by having a set of ideas on which both parties can build upon later in the negotiation, and among which they can then jointly choose a final solution26.
The critical element to remember is that it is not a “one size fits all” solution. By providing different ideas along with with a spectrum and being flexible, both parties may be able to produce a problem-solving process that could eventually create a solution that protects both parties’ interests27.
A competent lawyer during mediation always thinks what his/her client needs and the possibility of any creative outcomes that might be considered beyond just a monetary settlement. At the same time, a lawyer needs to understand what the other side’s goals and desired results might be, and of course what your own client’s goals and objectives might be and the best way to achieve them28.
H. Identify Shared Interests
Identify any common interests: Knowing the opponent’s benefits is the only way common interests can be identified. Alongside, with shared interests come motivation, with motivation comes concession, with concessions, come solutions, and with solutions come settlement29. Mediation and creative problem solving come together30.
In theory, it is evident that shared interests help produce an agreement. By definition, inventing an idea that meets shared interests is right for you and good for them. In practice, however, the picture seems less clear. In the middle of negotiation over price, shared interests may not appear obvious or relevant.
I. Developing Objective Criteria
It is easier to resolve disputes meaningfully when both parties are willing to accept objective criteria instead of trying to force each other to back down.
Carrying on a principled negotiation involves two questions:
1) How do you develop objective criteria, and;
2) How do you use the rules successfully during a negotiation31.
No matter what method of negotiation is implemented, each party needs to be prepared in advance to have a successful negotiation process. Each party should review the objective criteria beforehand and think through the application to their respective case.
When discussing the proposed objective criteria with the other party, there are three basic points to remember:
1) Frame each issue as a joint search for objective criteria.
2) Reason and be open to ideas as to which standards are most appropriate and how they should be applied.
3) Never yield to pressure, only to principle32.
J. Cultural Fluency
As advocates for our clients, we must be fluent in the cultures of all stakeholders involved in the mediation. Cultural sensitivities are embedded in every conflict, to truly appreciate a party, position a lawyer needs to be able to identify these sensitivities and proceed accordingly. Cultures affect the ways we name, frame, blame and attempt to solve our most deeply held conflicts.
There is no one-size-fits-all approach to conflict resolution, especially since different culture sensitivities require different solutions or culturally appropriate solutions.
Especially in Canada, given its vast diverse population, lawyers need to develop a strong sense of how to deal with conflicts that carry cultural sensitivities is almost a core competency for those who intervene in conflicts situations.33
We must remember that cultural understanding begins with each of us committing to a process of increasing self-awareness, curious observation, ongoing reflection and dialogue with others34. It refers to awareness of culturally bound world views – our own and other’s – and the capacity to be attentive to how this world views shape what we see, interpret, and attribute during a conflict35.
K. Your and Other Side’s Best Alternative to Negotiated Agreement (BATNA)
When entering a negotiation, a competent lawyer will explore all practical options that will lead to an agreement. It also necessary to understand that you may have an “ideal” solution or outcome predetermined; however, effective lawyers will also attempt to develop attractive alternatives to their “ideal” outcome.
Your BATNA is something that should be developed using the following criteria:
1) Inventing a list of actions, you might conceivably take if no agreement is reached;
2) Improving some of the more promising ideas and concerning them into practical alternatives; and
3) Selecting, tentatively, the one option that seems best.36
Always remember that negotiations are two-way streets, an effective lawyer will never forget to think about the choices to a negotiated agreement available to the other side. The more you understand the alternatives, the better prepared you are for a negotiation.37
L. When the Other Side is Powerful
If the other party to a negotiation has a great deal of leverage, it would be ill-advised to turn the negotiation into a classic “gunfight.” The stronger a party appears in terms of physical or economic power, the more the other party can benefit by focusing the negotiation on the facts and merits of the case. To the extent that they have leverage and you have a principle, the more significant a role you can establish for a principle the better off you are38.
If we sense that the negotiation is falling apart as a last resort, turn to your BATNA and walk out. If the other party is willing to negotiate in a fair and efficient matter, they will contact you to get you back to the table.39
M. Dealing with Threats
Threats are one of the most abused tactics during a mediation. When lawyers use threats during a negotiation for example “this is our final offer, or we’re going to sue” it leads both parties to implement coercive tactics, and it knocks the entire mediation. Research suggests that we use coercive tactics just because we cannot think of any better tactics40.
Preparation is key to a successful mediation. According to the authors of Beyond Reasons, there are three areas to focus on before we enter a negotiation:
1) on the process,
2) on substance, and
3) on emotion.
Being well prepared on the substantive issues that might come up during a mediation and on the process for how to handle them, ensures that a lawyer understands all the problems before entering a negotiation. Furthermore, emotional preparation involves thinking carefully about steps to build a good rapport and taking steps immediately before the negotiation to calm your anxiety41.
Justice Archibald believes that success in Alternative Dispute Resolutions (“ADR”) depends to a large extent on the degree to which lawyers, parties, and neutrals are prepared for the process42.
O. Client’s Preparation and Participation
Generally, communication during mediation is customarily between the lawyers and their respective clients and directly between the lawyers as they negotiate on behalf of their clients. It is rarely directly between the parties as lawyers generally discourage their clients from dealing directly with each other, and clients are content to leave the legal problems for their lawyers. In short, the lawyers speak for their clients.43
Although lawyers play a central role in mediation, clients also need to take an active role. We should prepare clients ahead of a mediation, so they understand the process. The client must communicate effectively with the mediator, and the client must be comfortable with the process for a settlement to occur.44
Furthermore, client preparation also requires skills to manage expectations. We need to ensure that the client has realistic expectations of the possible outcomes of the mediation45. If the client does not share a lawyer’s expectations, make sure the client is open to the mediator’s reality testing. Moreover, we cannot expect success at mediation if we merely go to the mediation and rehash legal arguments and entrenched positions46.
We must be engaged with the mediator in the problem-solving process; merely accepting or rejecting proposals from the mediator or the other side is insufficient “engagement”.47 We should engage out clients in the decision making as clients have the right to be the decision makers irrespective of the fact that they have legal counsel. The clients deserve to be made aware of relevant concerns and potential solutions and to determine for themselves which solutions best respond to the financial, social, psychological, moral and other ramifications that may arise from adopting solutions to legal problems. After all, clients and not lawyers live with the advantages and disadvantages of the outcome48.
For lawyers, credibility comes from making a confident and well-informed presentation which is concise and direct49. All lawyers know that their reputation is their biggest asset it is earned over a career and lost in an instant. Once our reputation is lost, status cannot be reclaimed. A lawyer should never risk their reputation for a quick “win,” it is imperative that a lawyer has the utmost credibility when acting on behalf of their clients that must be maintained.50
1 James K.L. Lawrence, Mediation Advocacy: Partnering with the Mediator, Ohio State Journal on Dispute Resolution [vol. 15.2 2000] at 427
2 Roger Fisher and William Ury and for the Revised Editions Bruce Patton of the Harvard Negotiation Project, Getting to Yes: Negotiating Agreement Without Giving In, Penguin Books, 3rd edition 2011, at 4-5
3 Supra at 7
4 Supra, at 21
5 Naomi Brower and Jana Darrington, Effective Communication Skills: Resolving Conflicts, July 2012, http://digitalcommons.usu.edu/cgi/viewcontent.cgi?article=1786&context=extension_curall material accessed on April 23, 2017.
7 Bernard Mayer, The Dynamics of Conflict, Second Edition (Published by Jossy-Bass 2012), at 182
8 Supra 186
9 Douglas Stone, Bruce Patton, Sheila Heen, Difficult Conversations: How to Discuss What Matters Most, Penguin Books, second edition 2000, at 178
10 Roger Fisher and Daniel Shapiro, Beyond Reasons: Using Emotions as You Negotiate, Penguin Books 2006, at 36
11 Douglas Stone, Bruce Patton, Sheila Heen, Difficult Conversations: How to Discuss What Matters Most, Penguin Books, second edition 2000, at 168
12 Supra 168
13 Roger Fisher and Daniel Shapiro, Beyond Reasons: Using Emotions as You Negotiate, Penguin Books 2006, at 34
14 William Ury, Getting to Yes with Yourself, Harper One at 20
15 James K. L. Lawrence, Mediation Advocacy: Partnering with the Mediator, 2000, 15 Ohio St. J. on Disp. Resol. 425, accessed on April 16, 2017, at 426-427
16 Margaret L. Shaw, Advocacy in Mediation, Mediation is not “litigation lite” – advocacy skills still matter in this less formal setting, The Practical Litigator, Heinonline 22 Prac.litig. 9 2011, content downloaded on April 16, 2017
17 Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes, The Belknap Press of Harvard University Press 2000, at 49
18 Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes, Second edition 2000, at 63
19 James K. L. Lawrence, Mediation Advocacy: Partnering with the Mediator, 2000, 15 Ohio St. J. on Disp. Resol. 425, accessed on April 16, 2017, Page 433
20 Mark D. Bennett and Scott Hughes, The Art of Mediation, Second Edition (National Institute for Trial Advocacy 2005) at 79
21 Douglas Stone, Bruce Patton, Sheila Heen, Difficult Conversations: How to Discuss What Matters Most, Penguin Books, November 2010, at 106.
22 William Ury, The power of Positive No, Bantam Books, January 2008, at 89
23 Roger Fisher and Daniel Shapiro, Beyond Reasons: Using Emotions as You Negotiate, Penguin Books 2006, at 2
24 Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes, The Belknap Press of Harvard University Press 2000, at 67
25 Michelle Lebaron and Venashri Pillay, Conflict Across Cultures, (Intercultural Press 2006), at 115
26 Roger Fisher, William Ury and Bruce Patterson, Getting to Yes: Negotiating Agreement Without Giving In, Penguin Books, Revised Third Edition 2011, at 67
27 William Ury, The power of Positive No, Bantam Books, January 2008, at 154
28 Margaret L. Shaw, Advocacy in Mediation, Mediation is not “litigation lite” – advocacy skills still matter in this less formal setting, The Practical Litigator, Heinonline 22 Prac. litig. 9 2011, content downloaded on April 16, 2017, at 11
29 Mori Irvine, Some Do’s and Don’t’s of Mediation Advocacy, Heinonline 57 Wash. St. B. News 35 2003, P37
31 Roger Fisher, William Ury and Bruce Patterson, Getting to Yes: Negotiating Agreement Without Giving In, Penguin Books, Revised Third Edition 2011, at 86
32 Supra at 89
33 Michelle. “Culture and Conflict.” Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: July 2003 <http://www.beyondintractability.org/essay/culture-conflict>. Accessed on April 23, 2017
34 Michelle Lebaron and Venashri Pillay, Conflict Across Cultures: A Unique Experience of Bridging Differences, Intercultural Press, 2006, at 55
35 Colleen M. Hanycz, Trevor C.W. Farrow, Frederick H. Zemans, The Theory and Practice of Representative Negotiation, Emond Montgomery Publications Limited 1996, at 140
36 Roger Fisher, William Ury and Bruce Patterson, Getting to Yes: Negotiating Agreement Without Giving In, Penguin Books, Revised Third Edition 2011, at 105
37 Supra 107
40 Roger Fisher and Scott Brown, Getting Together, Building Relationships as we negotiate. (Penguin Books Ltd. 1988), at 138
41 Douglas Stone, Bruce Patton, Sheila Heen, Difficult Conversations: How to Discuss What Matters Most, Penguin Books, second edition 2000, at168
42 Justice Todd Archibald and Christian Vernon, Incorporating Insights from Experimental Psychology and Behavioural Economics into ADR Practices: The Art and Science of Persuasion – Chapter V, Annual Review of Civil Litigation, at 2
43 Gary Friedman and Jack Himmelstein, Challenging Conflict: Mediation Through Understanding (ABA Books 2009), at 32
44 James K. L. Lawrence, Mediation Advocacy: Partnering with the Mediator, 2000, 15 Ohio St. J. on Disp. Resol. 425, accessed on April 16, 2017, at 428
45 Frank K. Gomberg, Ten Commandments For Effective Mediation Advocacy, An Outline, Osgoode Hall Law School
46 Supra at 430
47 Supra at 426
48 Page Binder, Bergman, Price and Tremblay, Lawyers As Counselors: A Client-Centered Approach, Second Edition, Thompson West, at 4
49 Justice Todd Archibald and Christian Vernon, Incorporating Insights from Experimental Psychology and Behavioural Economics into ADR Practices: The Art and Science of Persuasion – Chapter V, Annual Review of Civil Litigation, at 30
50 Frank K. Gomberg, Ten Commandments For Effective Mediation Advocacy, An Outline, Osgoode Hall Law School