Lockdown Dispute Resolution 101 #21: Effective communication strategies in lockdown – Appropriate questioning: Part 2

Reality testing 1

In this last post of the sequence exploring the communication tool of LARSQ for effective lockdown communications and negotiations, we consider a specific focus of questioning in mediation practice – reality testing. Reality testing involves asking hypothetical and reflective questions to help the parties assess whether the elements of any proposed agreement will work outside the mediation room in their real world.

In our efforts to prevent, manage and resolve disputes in lockdown, we don’t have a mediator to help us with reality testing. So we need to enact our dispute resolution agency and remember to reality test for ourselves.

Reality testing

Although a little controversial in terms of different views on what levels of mediator intervention are appropriate in (facilitative) mediation, many mediators believe that one of their functions as a mediator is to encourage the parties to settle. This function is important because mediators are in a unique position to influence and support the parties’ decision-making. However, most mediators don’t want to see the parties reach just any sort of agreement – they want the parties to decide on mutually agreeable, workable and sustainable solutions to their problem. This is why reality testing is important.

Reality testing 2In acting as an agent of reality, a key strategy to help the parties consider whether a settlement or solution is realistic and viable is to question them about what the proposed solution would look like in operation in the context of their lives outside mediation, helping them to cogently and realistically think through the risks, options and choices available to them.

When mediators ‘reality test’, a function that often happens in separate meetings with the parties, they challenge the parties to face the legal, financial and personal realities of their situations, to reflect systematically and practically on positions, behaviours or attitudes, and to think beyond the present to possible future consequences.  It is not unusual for negotiating parties to be optimistically over-confident about their situations and mediators challenge such illusions.

For example, in a parenting dispute two separated parents might consider the potential viability of each having the children live with them for an equal amount of time – perhaps one week with one parent and the next week with the other. Realistically this would require each parent to be able to organise school drop-offs and pick-ups for the 5 school days that the children are with them. However, if one parent is a shift worker with variable hours and no-one who could help them, this needs to be considered in terms of the realistic viability of the proposed equal time arrangement.

Reality testing 3

Reality-testing can relate to factors peculiar to a dispute, such as lack of evidence or pressure of time, or to environmental realities, such as litigation costs or dangers from external competitors. Mediators can assist negotiating parties to better appreciate their weaknesses, risks and realistic options.

Mediation is about what is ‘do-able’, and if the parties are holding out for objectively unattainable settlements, mediators can facilitate more realistic expectations. This can be achieved by providing information (for example about litigation risks), by querying (for example on the likelihood of agreements being enforceable) and by asking reflective and hypothetical questions.

Reflective questioning

Reflective questioning includes both empathic and clarifying questions, which we discussed in yesterday’s post. Empathy refers to the ability to put oneself in the shoes of another, to understand things from their perspective. As we’ve noted before, empathy does not signify agreement, nor does it amount to sympathy with, or compassion for, another. It involves convincing a person that the listener has entered their world of understanding, if only temporarily. Empathic questions show a sender that the receiver has understood what they said. They involve reflecting the affect within the sender’s statement. Through empathic questioning the reality of a situation can be discovered.

Building on the scenario used yesterday about Karlie and Nigel, some examples of empathic questions are:

  • ‘So, Karlie, it sounds like you felt disgrace for you and your family because of the allegations made in this story …?’
  • ‘Karlie, it sounds like your health suffered and that you became more despondent from then on …?’
  • ‘Nigel, it sounds as if you were concerned about the legitimacy of information supplied to you after Karlie and her family complained about this story …?’

While empathic questions seek to check out the feeling or attitude behind a statement, clarifying questions seek confirmation of material aspects of disputes, such as facts, information and priorities identified by the parties.

For example,

  • ‘Karlie, what would be the benefit to you of a public apology from Nigel about the story?’
  • ‘Nigel, if you apologised publicly to Karlie about the story how would that impact your career as a journalist?’

Hypothetical questions

The ‘what-if’ or ‘if-what’ question is a frequently used mediator intervention and can be helpful in reality testing and in getting the parties to consider options hypothetically without being committed to them.

  • ‘Nigel, what if Karlie were to agree to accept your proposed compensation figure; what would you then be able to commit to in relation to her positive publicity campaign?’
  • ‘Karlie, if Nigel would agree to pay for your positive publicity program, what would you be willing to accept in relation to the amount of compensation?’

It’s challenging in lockdown communications for us to be effective agents of reality. For reality testing to work without the support of a mediator, the people communicating must be genuinely committed to collaborating to constructively discuss an issue and problem-solve. We need to enter lockdown communications not only with some effective communication skills and strategies – such as reality testing – up our sleeves, but also with the right attitude to preventing, managing and resolving disputes.

In the next post we look at some of the psychology basics that are relevant to effective communication and negotiations.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #22: Effective communication strategies in lockdown – dispute resolution psychology basics

Acknowledgements

Mediation in AustraliaSome of the content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.57-6.58 with the kind permission of the authors. Thank you – Laurence and Nadja! 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. The post also includes content from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 104-5.

 

Reality testing image 1: High Performing Systems Inc

Reality testing image 2: High Performing Systems Inc

Reality testing image 3: Clare A Piro Attorney and Mediator

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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