Lockdown Dispute Resolution 101 #8: Learning from the art of mediation – how mediators assist parties to communicate

Communication 1

It has been a consistent theme in recent posts that there is much we can learn from the mediation process and from mediation theory. Using some of the tools of mediation in our own lockdown communications and negotiations can help to make them more constructive and effective. When our communications go well, we are in a much better position to positively prevent, manage and resolve disputes while we’re locked down.

This post identifies some of the ways in which mediators assist the parties in a mediation to communicate. We extend these discussions on communication and negotiation in further posts this week.

How mediators assist communication between the parties in a mediation

When people are in dispute or conflict, or having difficult conversations, they tend not to communicate accurately, comprehensively or constructively. Poor communication can cause disputes and conflict to arise and escalate. In lockdown, we are faced with the added stressors of anxiety, fear and sadness about the current global pandemic and its impact on the world, our families, friends and colleagues and on our livelihoods and the world’s economies.

Mediators work to improve the quality of communications between parties in multiple ways and assist them with speaking with, and listening effectively to, each other. Mediators have a professional responsibility to have a deep knowledge of communication patterns in conflict. They are also highly trained in negotiation and communication skills, such as listening, questioning, reflecting, reframing and summarising (we post about all of these skills in more detail in upcoming posts). Providing parties with opportunities to have a voice requires mediators to speak less rather than more within the totality of the discourse, but it also requires positive interventions and the provision of communication assistance at the right times.

The mediator’s role as communications facilitator has several dimensions. First, mediators must themselves present as effective communicators and model good speaking and listening skills, attending to non-verbal messages and other signals within mediation dynamics. Second, mediators intervene directly in the event of poor inter-party communication. Where disputants are not listening to or comprehending each other, for example, mediators can ‘interpret’ communications or reframe a segment of dialogue to emphasise positive sentiments which might otherwise be lost. Mediators transmit messages between parties, and they can present offers and counter-offers in ways conducive to negotiation success. To ensure clarity and accuracy in the parties’ dialogue mediators use visual aids, such as whiteboards, and maintain written notes of points of agreement. Third, in separate meetings with the parties individually (also known as private caucus or private sessions) mediators advise and coach the parties on effective communication techniques, for example on how to respond to proposals or make counter-proposals without offending the other side.

Communication 2

How can we adopt the skills of a mediator for effective lockdown communications and negotiations?

The benefits of the process of mediation, and the presence of a third-party communications expert in these ways, are lost to us when we are managing our own communications and negotiations in lockdown. But we can draw from a mediator’s approaches to make our own methods of negotiating and preventing, managing or resolving disputes, as effective as possible. For example, we can:

  • Ensure we always speak politely when communicating with others and listen carefully to what other people are saying.
  • Attend to non-verbal messages and other signals that come up as discussions progress.
  • Check in with the people we are communicating with to ensure that our understanding or interpretation of what they have said is accurate.
  • When dialogue becomes negative, we can reframe what has been said to emphasise positive sentiments which might otherwise be lost.
  • Work hard to enact positive communication methods – for example, active listening, acknowledging, summarising and appropriate questioning.
  • Actively seek to generate a range of offers and counter-offers so it’s possible to package up an agreement on matters that each person can live with.
  • Consciously be deliberate in using our dispute resolution agency to understand and empathise with the person we are communicating with and acknowledge their positions, needs, emotions and interests.
  • Use visual aids, such as whiteboards or flipcharts, to assist with clarity and structure in our dialogue.
  • Keep records of discussions, the identified common ground and matters on which agreement is reached.

Posts in coming days will explore negotiation practice and theory a little more deeply. Then subsequent posts will break the negotiation skill-set down to consider in further detail some of the more manageable elements of negotiation theory and practice in the mediation context that we can enact ourselves in lockdown. We’ll focus on understanding the nature of, and being able to analyse, disputes and conflict, and we’ll consider in detail how to practice some of the fundamental skills of effective communication (listening, acknowledging, reframing, summarising and questioning). If we intentionally enact these skills in lockdown communications and negotiations we will definitely be positively supporting the prevention, management and resolution of disputes.

Endnote: If you are interested in training to be a mediator, at Bond University Law Faculty we run short courses in mediation and family dispute resolution through our Dispute Resolution Centre. During COVID-19 lockdown all courses will be conducted online.

Tomorrow’s Blog: Learning from the art of mediation – how mediators facilitate party negotiations.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 102-104. Laurence is an esteemed member of the ADR Research Network and has long been a leader in the Australian and international dispute resolution communities.

Communication image 1: Independence Plus Healthcare at Home

Communication image 2: envato market

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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