BLANEY McMURTRY LLP | ALTERNATIVE DISPUTE RESOLUTION | TIPS ON EFFECTIVE COMMUNICATION DURING MEDIATION
Tips on Effective Communication During Mediation
Preparation is one of the key elements for a successful mediation. Part of the preparation involves becoming
familiar with how the mediation process works and reviewing with your lawyer issues such as your expectations;
the strengths and weaknesses of your case and the other side's case; the costs and risks of proceeding to trial;
and possible settlement scenarios. An equally important part of preparing for mediation involves understanding
the appropriate demeanor which should be displayed throughout the mediation. Here is a list of tips on how to
communicate (listen and speak) effectively during mediation. These tools will help to keep the mediation
focused and productive, while enhancing your power to persuade the other side of the merits of your
perspective.
EFFECTIVE LISTENING
In arguments, we often listen to rebut. Effective communication involves listening in order to understand what
the speaker is trying to say.
Why is it essential to become effective listeners to resolve conflict?
? It convinces the other side of your good faith and constructive intentions.
? You might “hear” valuable information which changes your view of the matter.
? It increases the likelihood that the other side will listen and try to understand you.
? It reduces defensiveness and resistance and can create a place for “change” to happen (such as bringing
everyone closer to a reasonable middle ground or coming up with creative solutions which satisfy both
of your concerns).
How can we listen with understanding? Here’s a list of elements of good listening:
1. ATTENTION
Give the speaker your full uninterrupted attention. This can be accomplished in two ways. First, put aside your
own views, opinions, and critical judgments for the time being. Try to see the situation from the other person’s
point of view, even if you don’t agree with the person. Second, use your body to say, “I’m listening”. Be aware
of your facial expression, body posture, tone of voice and eye movements. Make frequent eye contact; keep
your body oriented toward the speaker; and nod your head to show you are listening and to encourage the
speaker to say more. Don’t sift through papers, cross your arms in judgment, or make faces at your lawyer or
the mediator when you hear something you believe is false or exaggerated.
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BY: ALVA ORLANDO 416.593.3980 AORLANDO@BLANEY.COM
BLANEY McMURTRY LLP | ALTERNATIVE DISPUTE RESOLUTION | TIPS ON EFFECTIVE COMMUNICATION DURING MEDIATION
2. PARAPHRASING AND SUMMARIZING
Restate or summarize what the speaker has said in your own words. This confirms to the speaker that you have
listened and understood what was said. Describe both the content and feelings of the communication in a fair and
objective manner. Do not judge, evaluate, or try to give the speaker solutions. Some examples of how you might
begin are : “What I hear you say is.....” “So you feel very angry about....” After restating, ask the speaker if your
summary is accurate and complete. This allows the speaker to clear up any misunderstandings and to elaborate on
what is important to him or her.
3. ASK CLARIFYING Q UESTIONS
You may wish to ask the speaker questions to obtain more information or to clarify and better understand the
speaker’s perspective. It is important to ask open-ended questions, that is, questions which cannot be answered
with only a “yes” or a “no,” for example: “Tell me more about....” “Can you give an example...” Remember to
use a non-threatening tone of voice and to avoid framing a question as a demand or accusation (as lawyers
frequently do when cross-examining witnesses) as this will make the speaker feel attacked and respond
defensively--and he or she will stop listening.
EFFECTIVE SPEAKING
Just as using effective listening skills can improve communication and understanding, so can “effective
speaking.” You probably have had the experience of saying something that you thought was very clear and then
finding out that your message was interpreted in an entirely different way from what you intended.
Why is it essential to become effective speakers to resolve conflict?
? You can increase your control over whether your message is received the way you want it to be.
? You will keep the discussion more focused and productive, and decrease the likelihood of escalating the
conflict or creating an impasse.
? You will be more effective at persuading the other side of the merits of your views.
Here are some tips on how you can be a more effective speaker:
__________________________________________________________
BY: ALVA ORLANDO 416.593.3980 AORLANDO@BLANEY.COM
BLANEY McMURTRY LLP | ALTERNATIVE DISPUTE RESOLUTION | TIPS ON EFFECTIVE COMMUNICATION DURING MEDIATION
1. FOCUS ON THE PROBLEM, NOT THE PERSON
You’ve probably heard the popular saying, “Be hard on the problem, soft on the people.” Throughout the
mediation, try to keep the focus on the problems or issues at hand rather than on assigning blame or finding fault
with the other.
2. SPEAK FROM YOUR OWN PERSPECTIVE
In other words, describe your own values, thoughts, feelings and actions instead of putting words in the other
person’s mouth: “I feel... I believe... I think...” instead of “You broke our agreement”. Avoid both telling the
other person what you think his or her intentions are: “You're deliberately hiding information” and describing
the other person’s personality: “You’re just a...” Instead, talk about how you are affected by the person’s
behaviour.
3. SPEAK DIRECTLY TO THE OTHER PERSON
You are trying to persuade the other party and not the mediator, therefore speak directly to him or her.
4. BE SPECIFIC
Describe particular behaviour rather than making generalizations. Avoid using words like “always” and “never.”
Give concrete examples to illustrate your point of view.
5. BUILD FOR THE FUTURE
Talk about a problem in terms of what you want to see happen in the future or how a situation or working
relationship can be improved, rather than arguing about the past.
6. FOCUS ON COMMON INTERESTS, NOT POSITIONS
A “position” is a solution to a problem, often stated as a fixed demand. For example, “I want $75,000.00 for
my interest in the business” is positional. Interests are a person’s underlying values, concerns, needs, fears, and
hopes. The interests behind the above statement might be stated as: “It is important to me to receive
$75,000.00 for my interest because that was the amount of my initial investment and it will cost me at least that
much to start another business.”
Most people tend to assume that because the other side’s positions are opposed to ours, then their interests
must also be opposed. In fact, some of the most powerful interests are basic human needs such as security,
recognition, economic well-being, and control over one’s life. Look for and point out areas of agreement or
shared values, concerns, needs, interests, and hopes. Then try to frame your own positions in a way that
highlights their advantages for everyone concerned by identifying the common interests which are served.
__________________________________________________________
BY: ALVA ORLANDO 416.593.3980 AORLANDO@BLANEY.COM
BLANEY McMURTRY LLP | ALTERNATIVE DISPUTE RESOLUTION | TIPS ON EFFECTIVE COMMUNICATION DURING MEDIATION
7. CREATE OPTIONS FOR MUTUAL GAIN
Incorporate the other person’s perspectives into your own to create shared solutions. This means developing
options which take into account both of your interests. Invent multiple options before evaluating them or
making a decision.
...A ND FINALLY, FOSTER AN ATMOSPHERE OF COOPERATION AND COLLABORATION
Trials are about past wrongs, fault-finding, and establishing who's right and who's wrong. Mediations are about
understanding, discovering, inventing, and future focused agreements. To maximize your chances of coming to
a resolution at mediation, it is important to foster a spirit of co-operation and collaboration, rather than
competition. State your desire to resolve the issues between you co-operatively and reiterate this intention
during the mediation, particularly if emotions are high or you feel you are reaching an impasse. Above all, be
flexible and open-minded--listen to and consider other points of view and strive to invent options which are
mutually satisfying!
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BY: ALVA ORLANDO 416.593.3980 AORLANDO@BLANEY.COM
