Lockdown Dispute Resolution 101 #7: Learning from the art of mediation – intentionally managing the emotional and physical environment of communications

Emotions in mediation

There is much we can learn from the theory and practice of mediation. If we enact some of the ways in which mediators practice their art, we can achieve more effective lockdown communications and negotiations. This in turn will enable us to prevent, manage and resolve disputes in lockdown well.

In Lockdown Dispute Resolution 101 #6 our focus was on lessons from mediation in relation to the usefulness of establishing a procedural framework for communications – or in other words elements of a structured process. In this post our focus is on adopting aspects of mediation practice in relation to managing the emotional and physical communication environments. In mediation, it’s one of the mediator’s roles to ensure a stable emotional environment and an appropriate physical environment as favourable conditions of effective problem-solving and decision-making. In lockdown communications in our homes, online and in places outside our homes (in those moments when we get to go out!) we don’t have an expert to help us with this – the responsibility lies with us.

Managing the emotional environment

Each mediator will have different strategies for managing the emotional environment of mediation. In broad terms, mediators seek to provide a trustworthy and impartial presence, a fair procedure and a setting that is hospitable and non-threatening. They do this by restricting pressure, aggression and intimidation in the meeting room, by providing a disposition of even-handedness, and by reducing anxiety and defensiveness among parties. Mediators can contribute a positive tone to proceedings, a mood of confidence, reassurance to anxious clients, reduction of tension through humour, and opportunities for safe emotional expression. They acknowledge and validate concerns, assist parties with face-saving, and de-escalate conflict through the use of language which is acceptable to all sides.

Taking on the responsibility of improving the emotional environment in lockdown communications and negotiations – when we don’t have an expert mediator to help us – asks a lot of us, especially when most people don’t have formal mediation training. But there are positive strategies that can be put into action.

First, we can harness the mediation strategies discussed in post #6. That is, we can commit to the ground-rules of discussions – to make a commitment to behave respectfully to each other and for only one person to speak at a time; we can positively recognise areas of common ground; and we can use an agenda to structure discussions and keep them on track. Second, we can self-regulate to keep emotions in check and discussions focussed (we post more about self-management and self-regulation strategies later in the series). For example, we can make sure that we communicate when we are feeling emotionally stable. If we start to feel angry, aggressive or agitated and this is interfering with effective communications, then we can proactively recognise that and call for a time-out or to adjourn the discussions until another time.

A third useful strategy (which is also discussed in more detail in a post down the track) is that of acknowledgement – this means using our dispute resolution agency to make an intentional effort to be empathetic and purposefully acknowledge and validate each other’s concerns. We can use phrases like: ‘it sounds as though you feel frustrated’, ‘this must be difficult for you’, or ‘I can hear from what you’re saying that you’re a bit sad about that’. Finally, we can be mindful of when it’s necessary to allow face-saving (which means ensuring everyone in the discussion retains a sense of dignity and self-worth), and we can actively de-escalate conflict by remaining calm and making intentional and careful choices about the language we use (see also post #4).

positive-emotions-in-mediation

Creating an appropriate physical environment for communication

Mediators make deliberate decisions in mediation practice to provide an appropriate physical environment. When we are engaged in personal communications in lockdown at home, we also need to ensure that we are in an appropriate physical environment for our discussions.

Negotiation phsyical environmentDrawing on mediation practice, there are a range of strategies we can enact. For example, ensuring we find a quiet place to sit comfortably, where we are free from interruptions and the lighting is at an appropriate level. We should choose a room that is relatively neutral, like the living or dining-room, for example, rather than a person’s bedroom. It can be constructive to have a whiteboard – even just a small one, or in the alternative a flip-chart or some paper, or an electronic device – for writing up the agenda and taking notes about possible options and solutions that are discussed. We might also harness relevant physical symbols that make us feel comfortable and productive. For example, having a photo of the children on the table when talking about arrangements for them to keep a focus on their best interests. It’s also a good idea to set up with glasses of water for refreshment.

Realistically, in lockdown a lot of our workplace communication is occurring via online platforms. To create an appropriate physical environment for communicating with our colleagues, we can ensure that our platform backgrounds are calming and positive, or that they give our colleagues an insight into who we are by sharing an aspect of ourselves or our home life – such as putting a favourite book or picture in the background. We can also remember to mute our microphones when we’re not talking if a number of people are in an online meeting, and we can learn how to use the online features of waiting-rooms, breakout rooms and visual aids. It’s also basically important to have, for example, a good quality camera and microphone so the visual and audio aspects of communicating aren’t poor quality or frustrating.

So in summary

A mediator has two overall objectives in managing the mediation environment to provide support for the parties’ positive engagement in negotiation and decision-making – managing both the emotional and the physical environment. In lockdown communications we can learn from both those objectives. If we ensure a positive emotional tone and physical environment, we will be creating favourable conditions for effective interactions and communications with friends, family, colleagues and others during lockdown.

Endnote

The members of the ADR Research Network are all passionate about positive approaches to dispute resolution, such as mediation. As well as being scholars of dispute resolution many of us are accredited and practising mediators and some of us are coaches and DR trainers as well. If you are interested in training as a mediator you might like to investigate: Resolution Institute, Bond Dispute Resolution Centre, the College of Law and the Australian Mediators Association. You might also consider a postgraduate qualification in dispute resolution – many of the Network members’ universities offer these so there’s lots to explore.

Tomorrow’s Blog: Learning from the art of mediation – a negotiation primer.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 97-104; and from ideas and content in Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) Chapter 3. Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

Emotions in mediation 1: Mediator Academy

Emotions in mediation 2: ADR Daily

Negotiation table: New York Times

 

This entry was posted in Dispute resolution by Dr Rachael Field. Bookmark the permalink.

About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

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