Lockdown Dispute Resolution 101 #23: Effective communication strategies in lockdown – dispute resolution psychology basics: Part 2

Our efforts in lockdown to prevent, manage and resolve disputes can be supported by engaging with some psychology basics. Not only do we need to recognise the different biases we bring to lockdown negotiations and communications, there is also a range of other insights that we can learn from psychology. We don’t have a mediator at home and in virtual workplaces to help us, so we need to draw on our dispute resolution agency and harness this knowledge ourselves.

Psych 1

As we know, psychology is the scientific discipline that studies the human mind, human behaviour and the mental processes that inform human behaviour. Psychology as a profession is dedicated to helping people solve practical problems with human fundamentals – such as how we think and feel. A common misconception of psychology is that it is only concerned with mental health issues, such as depression, anxiety and stress. These issues fall under the heading of clinical psychology, which is a particular psychological specialisation. However, other aspects of psychological knowledge can help us in lockdown communications and dispute resolution practice to understand why people behave, think and feel in certain ways. It is therefore clear that our efforts to make communication and dispute resolution in lockdown more effective can be enhanced by connecting with the evidenced-based knowledge base of psychology.

In this post we specifically look at emotional intelligence, emotional flooding and emotional transference and countertransference. If we tap into some of these ‘psychology basics’ we will be better able to understand conflict, disputes and our responses to them in lockdown.

Emotional intelligence

Emotional intelligence 1Simply put, emotional intelligence is the intelligent use of emotions. This requires an awareness of our emotions and an ability to use that awareness to beneficially aid our thinking and behaviour. Emotional intelligence informs our capacity to perceive emotions, assimilate emotion-related feelings, understand the information of those emotions, and manage them.

Emotional intelligence contains four competencies. First, the ability to perceive emotion accurately. Second, the ability to use emotion to facilitate thought. Third, the ability to understand emotion. Fourth, the ability to manage emotion.

Emotional intelligence is strongly related to intrapersonal intelligence and interpersonal intelligence. Emotional intelligence from an intrapersonal perspective considers an individual’s emotional self-awareness and their ability to regulate their own emotions. Emotional intelligence from an interpersonal perspective involves a person’s ability to accurately detect the emotions of another person and to manage their emotional responses.

Harnessing our emotional intelligence is important for communicating and negotiating in lockdown if we are to engage as well as we can with family, friends and work colleagues.

Emotional contagion

Emotional contagion 1Emotional contagion is a psychological phenomenon that refers to the ‘catchability’ or contagiousness of emotions. For example, if Rachael is in a particularly happy mood, this mood may end up rubbing off on Anna and Anna may subsequently begin to feel happier. Anna might then ‘infect’ others with her happiness. Emotional contagion ‘refers to the tendency to catch (experience/express) another person’s emotions’ (Kimura, Daibo and Yogo, 2008, 27).

One formal definition of emotional contagion (sometimes referred to as primitive emotional contagion’ or ‘implicit emotional contagion’) describes the construct as ‘the tendency to automatically mimic and synchronize facial expressions, vocalizations, postures, and movements with those of another person and, consequently, to converge emotionally’ (Hatfield, Cacioppo and Rapson, 1994, 5).

Emotional contagion has also been defined more broadly to mean ‘a process in which a person or group influences the emotions or behavior of another person or group through the conscious or unconscious induction of emotion states and behavioral attitudes’ (Schoenewolf, 1990, 49).

An awareness of emotional contagion can help us to understand the feelings of others and therefore see a conflict in a more positive light – and take actions that might lead to positive outcomes. This awareness can also help us to avoid catching the emotions of others, which otherwise might lead to feelings of helplessness, or hostility towards the other party.

Emotional flooding

Emotional flooding 1Emotional flooding occurs when an individual becomes swamped by emotions. Biologically, intense emotional experience can affect the way the brain works. Information exchange to the neo-cortex is inhibited, with the result that people find it difficult to think in cognitively complex ways and to function properly. This might sound like a really extreme and rare occurrence, but it actually happens to people surprisingly frequently.

Have you ever found that in a heated argument, or when you are faced with a stressful situation, that your brain does not seem to function quite as well as you would like? Your muscles feel a bit tense, your heart rate goes up, your breathing becomes a bit more rapid, or your voice becomes unsteady? Maybe you feel like bursting into tears? These are all signs that emotional flooding may be occurring.

Knowing about emotional flooding is important for us in lockdown communications and negotiations. It is not uncommon to feel distressed if we are experiencing conflict, and this makes us particularly susceptible to emotional flooding. Emotional flooding is most likely to occur when we experience negative emotion that has been triggered by an external event, or even our own negative thoughts. It can be counterproductive to engaging in higher order thinking. That said, emotional flooding can occur to varying degrees in different people. For example, it might manifest itself in the person we are communicating with as their appearing just a bit spaced out, or mentally stuck.

Literature suggests that it may take at least 20 minutes for someone to recover from an experience of emotional flooding. Obviously, there are some situations where we can’t afford to take a 20-minute time out. Ideally then, we should try to avoid emotional flooding. Understanding our own triggers for emotional flooding is a vital step in its prevention. Reframing external problems or threats as challenges to be overcome, and correcting or challenging negative internal dialogue, are two strategies for combating emotional flooding. Positive self-talk is really helpful in this regard!

Transference and countertransference

Fussball_und_FreudThe concepts of transference and countertransference have their origin in the work of Sigmund Freud and his focus on psychoanalysis/psychodynamic theory. Freud was a famous psychologist for many reasons, although when most people think about Freud, they often think about beards, couches, and unconscious and sexually repressed thoughts and behaviour. These images are all accurate to a certain degree. As it turns out, one of the reasons why Freud used ‘the couch’ when treating patients related to the notion of countertransference: ‘Freud frankly admitted that he used this arrangement inherited from the days of hypnosis, because he did not like “to be stared at”; thus, it served him as a protection in the transferencecountertransference duel’ (Benedek, 1953, 202).

Talking about transference and countertransference outside the context of psychotherapy arguably dilutes the precise clinical meaning of these terms. Given this caveat, transference refers to a process in which we might project on to the person we are communicating with certain traits – which might not be based in reality – but which stem from our previous associations with that person. Countertransference involves a reaction to their expressed emotions and point of view from a perspective of our own unresolved personal issues. Just like emotional contagion and emotional flooding, transference and countertransference are regularly occurring phenomena. They don’t necessarily lead to problems, but it is important to appreciate when transference and countertransference are at play.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #24: Effective communication strategies in lockdown – self-management: Part 1. This is followed by Lockdown Dispute Resolution 101 #25: Effective communication strategies in lockdown – self-management: Part 2. These are the 2 final posts in the Lockdown Dispute Resolution 101 series.

Acknowledgements

LPPI 1The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) paras 10.27-10.42.

Psychology image 1: American Psychological Association

Emotional intelligence image 1: Cognitive Institute

Emotional contagion image 1: Psychology Today

Emotional flooding image 1: Highly Sensitive Refuge

Countertransference image 1: Moosmosis

See also:

Therese Benedek, ‘Dynamics of the Countertransference’ (1953) 17 BULL Menninger Clinic 201.

Paul Olsen (ed), Emotional Flooding (Human Sciences Press, 1976).

Gerald Schoenewolf, ‘Emotional Contagion: Behavioral Induction in Individuals and Groups’ (1990) 15(1) Modern Psychoanalysis 49.

Elaine Hatfield, John T Cacioppo and Richard L Rapson, Emotional Contagion (Cambridge University Press, 1994).

Tricia Jones and Andrea Bodtker, ‘Mediating with Heart in Mind: Addressing Emotion in Mediation Practice’ (2001) 17(3) Negotiation Journal 217.

Lezlie Burwell-Pender and Kate H Halinski, ‘Enhanced Awareness of Countertransference’ (2008) 36(2) Journal of Professional Counseling: Practice, Theory, and Research 38.

Masanori Kimura, Ikuo Daibo and Masao Yogo, ‘The Study of Emotional Contagion from the Perspective of Interpersonal Relationships’ (2008) 36 Social Behavior and Personality 27.

Nadja Alexander, Jill Howieson and Kenneth Fox, Negotiation: Strategy Style Skills (LexisNexis, 3rd ed, 2015).

Lockdown Dispute Resolution 101 #22: Effective communication strategies in lockdown – dispute resolution psychology basics: Part 1

Brain 1

In this post we think about the psychological and neuro-science impacts on our efforts to prevent, manage and resolve disputes in lockdown. This is another area where we need to enact our dispute resolution agency to be effective communicators in our homes and workplaces during COVID-19.

Mediation and the Brain

Psychology is about how the human brain works. The workings of the human brain are an increasingly important knowledge base for mediators and in lockdown we can learn from the art of mediation in this regard. In lockdown discussions we need to be aware of, and take into account, our relative emotional and psychological states.

We can no longer assume that individuals make utilitarian decisions on a rational basis, in the promotion of their own self-interests and in terms of objective cost-benefit analyses of their options. Such assumptions have been challenged, amongst other things, by the disciplines of behavioural economics, cognitive psychology, game theory, neuro-science and decision theory.

In mediation and in lockdown communications we need to expect some level of ‘irrationality’ in terms of our problem-solving and decision-making as humans.  Studies in cognitive psychology, for example, have demonstrated through observation, experiment and surveys that many people are guided by cognitive and social biases, heuristics and other unconscious factors when they make decisions and not by conscious rational considerations.

Various cognitive and social biases have implications for mediation and other DR processes:

First, the confirmation bias involves parties being selective in their choice of facts and evidence, accepting and emphasizing what supports their preferred outcomes to a situation and ignoring, marginalizing or rejecting the information which undermines it. This bias is essentially a form of one-eyed self-deception which is widespread in dispute situations.

Confirmation bias 1

Second, the anchoring bias involves parties being unconsciously influenced by a number or dollar figure provided from negotiating opponents, or even from an extraneous source, and adjusting their expectations and negotiation range accordingly.

Third, the optimistic over-confidence bias involves persons betting themselves ‘against the odds’ and expecting to do better than the average, for example franchisees in a particular industry or claimants in vehicle accident compensation cases.

The many unconscious biases in human decision-making cause parties in mediation to diagnose conflicts inaccurately and to intervene inappropriately, not only frustrating attempts at settlement but prospectively causing disputes to escalate in extent and intensity. The biases can also operate cumulatively – for example an employee’s confirmation bias about the circumstances of their removal from office is likely to exacerbate their unrealistic over-confidence about achieving a positive outcome to a dismissal claim, such as reinstatement, or a higher than normal damages settlement.

While artificial intelligence (AI) claims to avoid or annul many of these features of the human condition, decision-making biases can also be inadvertently embedded in software and algorithms and thereby impose residual preferences on decisions.

Mediation and Neuro-Science

Neuro-science adds to the knowledge base of psychology through observation and analysis of actual brain activities in human subjects. Through imaging of physiological, electrical and chemical impulses in the brain, scientists can observe the impacts on the brain’s neural pathways, and different parts of the brain, when a patient or subject is exposed to different sounds, sights, words or other stimuli.

Neuroscience 1A compelling illustration of these insights is provided in relation to the phenomenon of loss aversion, one of the cognitive biases previously identified by psychologists. When subjects undergoing brain-scanning are exposed to the single words ‘loss’ or ‘gain’ there are profound differences in the observed neural impacts – in broad terms the former term has an effect several orders of magnitude greater than the latter, in respect of both intensity and duration. In this instance the brain science reinforces orthodoxy long prevalent in mediation theory: parties who perceive they are facing a loss are likely to be risk-accepting and seek an outcome away from the mediation, but if they perceive a gain at the mediation table they are likely to be risk averse and favour settlement.  Brain scanning provides corroboration and a deeper explanation for the phenomenon, founded on human survival instincts, which responds to threats more intensely than to rewards. While survival instincts arose originally in relation to physical threats, they are now also a product of perceived unfairness, undignified treatment, negative emotional experiences or unfulfilled expectations in the mediation room.

Through brain-scanning and other investigative procedures, neuro-scientists have provided far-reaching evidence and understanding of how electrical messaging and chemical releases operate under conditions of stress, emotion and ambivalence, all of it potentially relevant to mediation.  For example, mirror neurons in one party’s brain can be activated by agitations in those of another person, leading to emotional contagion among disputants in high-level conflicts.  The chemicals dopamine, oxytocin, adrenalin and cortisol are released in response to specific pleasurable or stressful circumstances, including those encountered in the mediation room, and they affect respective parties’ behaviours, judgments and decisions.  The plasticity of the brain, however, entails that its operation is not always predictable and it can change its habits and patterns over time.

iain_mcgilchrist_767Another dimension of brain science derives from the organ’s bicameral structure. In 2017 Australian judges were addressed on the divided brain by an English psychiatrist, Ian McGilchrist, his work drawing on science, philosophy, literature and culture. He accentuated the significance of brain bicameralism in many aspects of human affairs and societal development – and by implication in dispute resolution activities. A more dated ‘left brain-right brain’ notion had been prevalent decades earlier, associating the left with attributes such as logic, language and analysis and the right with factors such as emotion, affect and art. This construct had in some respects been overtaken by work on the triune brain, and its implications, referred to above.

McGilchrist’s work essentially re-affirms in more erudite terms the significance of the two hemispheres, while emphasising that both sides are involved in all brain functions, from thinking to feeling and from mathematics to imagination, and continuously communicating with each other. However, despite the hemispheres being interdependent in all brain activities, each has significantly different ways of operating.

At a simplified level the brain spheres can be differentiated as follows: the left hemisphere is analytical and linear, it fragments experiences and operates with patches of information as opposed to whole entities and it uses categories and concepts in predictable patterns – ‘claimant’, ‘respondent’, ‘damages’ and the like. It has a narrow focus of attention and tends to decontextualize, divide and simplify, providing a ‘re-presentation’ of the world. Above all the left hemisphere is where our competitive instincts reside, it is utilitarian in focus and, importantly for mediation, it is convinced of its own rectitude and has difficulty changing its mind.

The right hemisphere is where new experiences are initially processed. It provides a big-picture assimilated view of the world, deeper and wider than the localised short-term view of the left. It has integrative powers, providing a more complex and connected picture of reality than the left, and it is more intuitive, imaginative and empathetic. Here there is a richness of thought, stimulated by gesture and symbol, poetry and myth, music and metaphor. Moreover, the right hemisphere operates largely at an unconscious level with few of our experiences and effective decisions, that McGilchrist suggests, operate within our actual consciousness.

The hemispheric modes of experience can be significantly opposed in their approaches and are sometimes in states of conflict. Human decision-making, whether in personal, business or mediation contexts, is initially dictated by the right hemisphere, albeit at an unconscious level. The complexity of thought in the right segment is then translated into the (sometimes simplistic) language and categories of the left. The ongoing development of the left hemisphere over the ages has made it more assertive than its partner and enabled it to manipulate reality, shutting down the right’s holistic view of the world – deeming it quaint and out of touch with a reality created by the right. Its penchant for self-consistency entails that it finds it difficult to accept that it might be wrong, a common syndrome in mediation. These factors explain the optimistic over-confidence encountered repeatedly in the mediation room (from both parties and advisers) which provides a challenge to mediators and other dispute resolvers.

It is not possible to depict definitively how emerging knowledge bases in psychology and neuro-science can be given effect at the mediation table. It is no easy task, for example, for mediators to identify parties’ cognitive and social biases accurately as these operate instinctively, without even the relevant party’s conscious awareness, and the other party and mediator may well remain unaware of them. Nonetheless all knowledge about human decision-making is potentially relevant in mediation and provides a tentative foundation for understanding the dynamics of parties’ negative dispositions and behaviours and what might be done about them. Moreover, while the biases may induce a lack of rationality to mediation decision-making, there is some degree of predictability in the different forms of irrationality.

johnwade150John Wade used the metaphor of the mediator’s tool-box of interventions, implying that mediators will not always be able to adopt standardised procedures and linear logic but may have to be reactive, responsive and instinctive in using different tools in the process.  The National Mediator Accreditation System provides some guidance on mediator responsibilities in relation to conflict, negotiation and culture but this is of only limited proportions. Psychology and neuro-science are definitely new tools for the mediator’s tool-box.

In lockdown communications we don’t have mediators with us thinking about all these complexities to communications. So we need to enact our dispute resolution agency and be aware of the psychological and neuro-science elements at play. In the next post we consider some of the specific psychological elements we can be aware, and take account, of in our lockdown communications.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #23: Effective communication strategies in lockdown – dispute resolution psychology basics: Part 2

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) paras 6.72-6.99.

Brain image 1: Harley Therapy

Confirmation bias image 1: Medium

Neuroscience image 1: Nature

Prof Ian McGilchrist image: Byron Clinic

Prof John Wade image: Mediate.com

 

 

 

 

 

 

 

 

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

Lockdown Dispute Resolution 101 #20: Effective communication strategies in lockdown – Appropriate questioning: Part 1

In lockdown communications enacting the elements of LARSQ can help to ensure that we can effectively negotiate and prevent, manage and resolve disputes. Questioning is the last element of LARSQ – but the skill of asking appropriate questions is critical for constructive communications and problem-solving. Mediators use questioning throughout each stage of the mediation process, and we can learn from the ways in which mediators practice the art of appropriate questioning.

Questioning 1

If one new thing we tried to do each day was to ask more clarifying questions instead of making assumptions and assertions, then our communications in lockdown would be exponentially more effective and respectful.

Appropriate questioning

There are different views as to the nature and extent of the questioning undertaken by mediators. In some mediation models, mediators conduct the procedure almost entirely through the use of questioning. In others, mediators ask very few questions of the parties but encourage them to explain certain facts or feelings directly to each other. The degree of questioning often depends on the stage and phase of a mediation. Mediators may be reluctant to ask certain kinds of questions in joint session or early in a mediation but may feel it appropriate to ask them in separate session or towards the end of a mediation. The mediator also needs to keep a check on questioning by professional advisers who may be present – as they may seek to interrogate or cross-examine the other party.

Questioning 2

The table below explains some of the different categories of questions, provides an illustration of each, the objectives for which each category can be used and the circumstances in which the particular category might be appropriate. They are based on a hypothetical mediation involving Karlie Meringe, a famous entertainer, and Nigel Nagel, a newspaper reporter. The dispute concerns Karlie’s defamation claim arising from a story in the Sunday paper claiming that Karlie had been involved in a scandal whilst on tour in Berlin.

Understanding different types of questions and their objectives
Type of question Illustration of the question Objectives of the question in the mediation process Circumstances of potential suitability in lockdown communications
Open ‘Karlie, would you describe in your own words how the newspaper story has affected you?’ General disclosure and exchange of information in an open-ended way; gets things started.

Useful when seeking a non-specific and non-defensive response from the other person.

Focused ‘Karlie, can you tell me how the report has affected your ability to perform on stage over the last 12 months?’ Disclosure of more detailed facts or information about a specific aspect of an issue, event, incident or theme. Used when there is time pressure or people are rambling and need to (re)-focus on particular issues.
Closed ‘Can you tell me, Nigel, whether the newspaper nominated you as the investigative journalist of the year for this story?’ Controlled disclosure of information through affirmative or negative response. For short clarifications.
Clarifying ‘So, Nigel, are you saying that you formed the view on the basis of information supplied to you that Karlie was directly involved in the events in Berlin?’ To verify or correct the listener’s understanding of a communication in relation to, for example, particular facts, interests, needs, and priorities. Appropriate at all times when active listening and reframing are called for; also used if the other person is not being sufficiently clear or specific on important matters.
Empathic ‘Karlie, it sounds like you’re “spinning around” and feeling helpless in this situation?’ To identify, acknowledge and validate important emotional, relational or symbolic themes. Appropriate at all times when active listening and reframing are called for.
Probing ‘Karlie, if you are to go on tour again, how will you deal with the public ridicule about the report?’ To obtain further specificity or justification from the speaker or to reality test options being considered. Probing questions are useful for ‘road testing’ solutions but can sometimes elicit a defensive response from the other person.
Leading ‘Now, Nigel, you were also responsible for verifying the authenticity of stories that were published in the newspaper, is that correct?’ To elicit information which the questioner already knows; to lead the speaker to a predetermined outcome. Only appropriate if uncontroversial information needs to be elicited. Otherwise not generally appropriate.
Cross-examining ‘Nigel, you said there were sufficient checks to identify Karlie’s identity in the story, but you did not actually examine the authenticity of the photograph that was submitted, did you?’ To test a party’s accuracy, reliability and general credibility; to expose contradictions and inconsistencies. Generally not appropriate or constructive.
Hypothetical ‘Karlie, if we could agree on the matter of compensation, what would you like to see printed in the newspaper as a result of these discussions?’ To get parties to consider options hypothetically without being committed to them. Useful when there are impasses or breakdowns in the communication or negotiation process.
Disarming/ distracting ‘How many reporters were writing for the newspaper in Berlin at the time?’ To deflect attention from a destructive interchange between parties. Useful at any time during when emotions are escalating or communications are becoming destructive.
Rhetorical ‘Nigel and Karlie, would either of you really like to go through a tortuous public trial?’ To make a point dramatically or to produce an effect. When the other person needs to be confronted with an obvious reality.
Ritualistic ‘Karlie, how are you this morning?’

‘Would you like a cup of tea, Nigel?’

‘Karlie, what did you make of the game last night?’

To support the ritual of small talk that builds rapport and gets things started. At the beginning of communications and at the end – as a form of ritualistic closing.
Rating or scaling ‘Karlie, on a scale of ten to one, where ten is irreparable and one is minor … just how damaging has this been to the sales of your new album?’ To establish the significance of an issue for a party and shift them from emotion to cognition; establish each party’s negotiability on respective issues. Generally useful when exploring issues and problem-solving.
Suggestive ‘Nigel, would it be possible for the publisher to contribute public relations resources towards Karlie making a public comeback?’ To suggest possible or obvious options for settlement; to float options without parties feeling committed to them. In facilitative mediation suggestive questions are used as a last resort, where the parties are making no headway on their own. They can be useful for option generating in everyday communications, however.
Neutral ‘Karlie, what timeframe would you be looking at for payment of compensation?’ [Instead of ‘Nigel, how quickly do you think you could pay?’] To highlight mediator impartiality by posing questions that are non-judgmental and value-free, and do not have assumptions, such as the need to repay quickly. At any time during communications.
Miracle ‘Karlie, if a miracle had occurred last night, and you woke up this morning with all your concerns about the story fully addressed, what would be different? What/how would you notice/see/feel? What/how would others notice/see/feel?’ To help the parties focus on a preferred future and imagine the dispute being over. To engage the right brain functions such as creativity and imagination and use senses such as the visual and kinaesthetic. Useful at any time when communications seem stuck.

At a broad level, no type of question is entirely unsuitable; suitability always depends on the context and the circumstances of the communication exchange. As a general rule, though, questions like open and clarifying questions are to be preferred for successfully encouraging positive and respectful questioning.

Questioning 3

In the next post we consider a specific approach to questioning that often features in the mediation process when mediators meet separately with the parties: reality testing.

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

Acknowledgements

Mediation skills and techniquesThe content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.55-6.56 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.

 

Questioning image 1: Royal Society of Chemistry

Questioning image 2: Sonru

Questioning image 3: Digital Promise

 

Lockdown Dispute Resolution 101 #19: Effective communication strategies in lockdown –Summarising

In posts # 17 and 18 we discussed the mediator’s tool of reframing. Reframing is the third of the five elements of the communication skill set represented by the acronym LARSQ – after listening and acknowledging. This post looks at how mediators use the fourth element of LARSQ – summarising – when they practice the art of mediation to support parties in their efforts to constructively communicate and problem-solve. We also discuss the related skills of paraphrasing and reiterating. In lockdown we can put these skills into practice as we endeavour to prevent, manage and resolve disputes.

Summarise 1

Summarising

A summary of what the person we are communicating with has said is a useful way to ensure that there is an accurate developing account of the conversation and it can be a way of demonstrating to that person that they have been heard properly and understood.

In mediation practice, summarising generally involves a mediator briefly restating or recapping important features of the preceding discussion and identifying the dominant feelings of both parties.

Summarising can be a powerful intervention in mediation – as well as in our lockdown communications – because it can achieve a range of positive objectives. For example, summarising can:

  • Provide a neutral and organised version of a sequence of discussion.
  • Emphasise vital issues which might otherwise have been overlooked.
  • Simplify convoluted exchanges.
  • Remind people that progress is being made.
  • Signpost how that progress is being made and reaffirm the common direction of the discussions.
  • Provide acknowledgment to people that they have been understood.
  • Establish a bridge into the next round of discussions.
  • Assist with establishing trust between people by using – in the summary – some of the key words they have said.

Summarising 2Good summarising requires a range of micro-skills, such as retaining important information, recalling it and condensing it. It is always a selective process in that in a mediation, mediators pick up on positive progress to date and present it in a constructive and concise statement. It is also selective in that mediators pick up only on what is useful for the communications – not everything gets summarised. The reason why mediators are selective in enacting the summarising process is that selectivity allows them to create a positive and encouraging basis for the parties to move forward with their negotiations. However, summaries also need to be balanced in the sense that they deal fairly with what each side has said.

In their book Mediation Skills and Techniques master mediators Laurence Boulle and Nadja Alexander provide an example of summarising in action. The example is based on a hypothetical dialogue from a mediation involving a widow and a relative of her deceased husband in relation to the distribution of his estate. The deceased’s wife, Mrs Rona Steele, is negotiating with a distant cousin, Ms Gabriella Gold, as a step prior to distribution of the estate of the late Mr Rod Steele.

Mediator: ‘Now, Mrs Steele, you’ve told us that you initially found it difficult to negotiate with Ms Gold because you felt that she could have dealt with you more humanely and sympathetically. You also said that while you might not be able to resolve all your personal differences, you are prepared to offer Ms Gold a small portion of Mr Steele’s estate. And, Ms Gold, you acknowledged that you could have handled things differently with Mrs Steele and demonstrated greater empathy for her loss. You also explained the pressures you are under at home and said that you would be prepared to consider a financial offer from Mr Steele’s estate as opposed to receiving the hand-crafted antique furniture you originally requested. Is that correct …? Now, Mrs Steele and Ms Gold, let’s move forward and look at how we can craft a financial arrangement that you can both live with …’.

Summarising is useful throughout a process of communicating or negotiating. At the very least, there is great value in being clear that each person’s positions, needs and interests have been accurately understood. Summarising is also useful if there has been a break in communications – it allows everyone in the conversation to revisit where the discussions got to before the break occurred and serves to refocuses people. Summarising can also be used when there is an impasse in communications or negotiations. In this situation it has the function of emphasising the positive progress that has been made to date and providing building-blocks for future dialogue and negotiation.

Good summarising can be one of the most effective interventions for mediators and is an essential tool in their mediation toolbox.

Summarising 3

Paraphrasing

In a mediation, mediators use paraphrasing to closely control the dialogue between the parties and to pick up on important issues and reflect the salient points in the mediator’s own words. Mediators focus on factors that are evidently important to the parties such as major concerns, interests, needs and feelings, thereby ensuring there is a response to these aspects of each party’s message. Because paraphrasing involves the mediator intervening in the dialogue with clarifying and empathic questions, and in summarising and reframing some of the conversation, it requires delicacy and discretion in choice of language.

Here is an illustration of the paraphrasing method based on the hypothetical discussion mentioned above:

Mediator: ‘Ms Gold, Mrs Steele is saying that although you may be justified in making a claim on the estate, the way you have approached this has caused her a great deal of pain, suffering and sadness. I’m wondering how you would like to answer her on that …?’

Ms Gold: ‘Yes, look … you have my deepest sympathy at this time. I know you and Rod loved each other and it must be really hard for you. Sorry if my manner has upset you. Rona, you were always good to me when I visited, you had an open door and listened to my woes. Sadly, this situation is no different … My partner has left me and taken all the furniture. He just cleared out the house. You know I don’t work and have four children to feed … I am desperately in need of support.’

Mediator: ‘Mrs Steele, Ms Gold has expressed her regret at the upset she has caused you. She has acknowledged the close relationship that you and Mr Steele had and how bereft you must feel at his loss. Ms Gold also emphasised how good you have been to her in the past. Can you tell her how you feel now that you have heard that …?’

Mrs Steele: ‘Well, it’s the first time I’ve ever heard words of kindness from Gabriella … But I am still not willing to part with any of the antique furniture that Rod’s great-grandfather hand-crafted …’.

Paraphrasing 1In a mediation, mediators ensure that paraphrasing is done in an even-handed way so that both the parties’ communications are paraphrased. In this way, it can be used to set up a pattern of direct communication between parties, and it can break what Australian mediation legends Ruth Charlton and Micheline Dewdney have called the ‘Oh but’, ‘Yes but’ pattern of communication: ‘Oh but I didn’t understand that’s what you wanted.’ ‘Yes but I had told you only two days before …’. ‘Oh but I called and texted you …’ ‘Yes but …’ (2014: 250). However, if this is the only way of keeping parties communicating constructively it can quickly become strained and artificial.

Reiterating

In mediation practice, mediators need to prevent anything of value ‘falling off’ the negotiation table. In the heat of the moment it is possible for an apology, a concession or a significant offer to go unheard by the listening party because of their anger, psychological deafness or intent on winning. Here it is wise for mediators to ask the speaker to repeat the value statement, when the timing is appropriate for this intervention. For example: Mediator: ‘Nigel, I think you were making an offer in terms of compensation a few moments ago, when we got side-tracked by the question of Karlie’s health. I’m wondering if you would like you to repeat that offer now …’.

Alternatively, mediators might themselves reiterate the statement of value when circumstances allow, for example: Mediator: ‘A few minutes ago I heard Nigel say that he would print a formal apology in the forthcoming Sunday paper. Is that correct, Nigel?’

Reiteration can be used to step up a weak signal from one party that is not being heard by the other, for example: Mediator: ‘Karlie, Nigel has indicated on a number of occasions that the story is not a personal attack on you nor on your work as an artist, which he says he admires very much. Is that what you have heard also?’

Reiterating 1Generally, reiteration is one of the tools in the mediator’s toolbox which can be used in all situations in which parties are talking past each other and not picking up on important messages.

LARSQ is certainly a significant skill set for mediators. Enacting the elements of LARSQ can also support quality, constructive communications in our daily lives – especially when we are faced with challenges such as lockdown. Posts 20 and 21 complete our sequence of posts considering LARSQ – they focus on appropriate questioning.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #20: Effective communication strategies in lockdown – appropriate questioning: Part 1

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.60-6.66 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.

Mediator's Handbook 3rd edSee also: Ruth Charlton and Micheline Dewdney, The Mediator’s Handbook: Skills and Strategies for Practitioners (The Law Book Co, 3rd ed, 2014).

Summarise image 1: The Ideal Teacher

Summarise image 2: GSA Learning Support

Summarise image 3: Adventures with Miss B

Paraphrasing image 1: Virtual Library

Reiterating image 1: Spinfold

Lockdown Dispute Resolution 101 #18: Effective communication strategies – Reframing in lockdown: Part 2

In post # 17 we discussed the mediator’s tool of reframing. Reframing is the third of the five elements of the communication skill set represented by the acronym LARSQ – after listening and acknowledging. The first post on reframing explained the skill and its functions. This post explores what reframing looks like in order to assist with developing reframing as a skill we can use in our lockdown communications and negotiations. Putting the skill of reframing into practice can help us to prevent, manage and resolve disputes in lockdown.

Reframe 4

Revisiting reframing

Reframing is a responsive communication strategy that is closely related to active listening. The goal of reframing is to change a frame of reference in order to get the people we are communicating with to think differently about matters, or at least to get them to see things in a different light. A successful reframe leads to changes in perspective or perception for the parties. This altered attitude can lead to the necessary changes in behaviour for constructive communication and interaction. While the original frame of reference may have had a negative effect on the management or resolution of a dispute, the new frame of reference will be conducive to constructive communication.

Reframing in action

Reframing serves a number of different functions. In their book Mediation Skills and Techniques, Laurence Boulle and Nadja Alexander show how a mediator would bring these functions to life by way of a table of examples. The examples are based on a hypothetical dispute between a buyer for a boardroom furnishings company and a supplier contracted to provide high-end luxury fabric for upholstering executive furniture. The fabric was delivered one week late and was the wrong shade and texture. The buyer had requested grey woven silk but the supplier had delivered fuchsia faux silk.

Function

of the reframe

Party statement Mediator’s reframe
It can detoxify language by removing accusations, judgments and verbal stings and barbs. ‘The supplier is hopeless. His stupidity has put me in an awkward situation with my most important client.’ ‘It sounds like you are under serious time constraints from your clients to deliver? And you seem concerned with the way the fabric was supplied to you?’
It can focus on the positive by removing references to negatives and other destructive elements in the language. ‘This mistake with the shade and the texture will cause me huge financial losses …’ ‘So getting the right fabric is very important to you?’
It can focus on interests by removing references to positions and solutions and reframing to underlying needs and requirements. ‘As I said, my claim is $400,000 and there is no padding in that figure.’ ‘So what’s important for you is to cover your deposit and other expenses as well as financial and potential business losses that flow from this incident?’
It can focus on the future by removing references to the past and reframing to future needs and interests. ‘I should have known that this would happen. He was always late, never returned my calls and never listened to my instructions properly.’ ‘So in dealing with suppliers in the future, punctuality, good communication and responsiveness will be important factors?’
It can highlight the general themes in a specific statement. ‘He is such an idiot. I told him that I wanted grey woven silk and he knew my client needed it by Friday!’ ‘So you are concerned that your client’s specific requests have not been met and your reputation has been affected?’
It can focus on details, specific terms and concrete actions rather than general sweeping statements. ‘Their current ordering procedure is a hopeless mess.’ ‘So you would prefer a system for dealing with orders with some checks built into it?’
It can mutualise problems by avoiding one-sided definitions and reframing to dual-sided formulations. ‘His careless mistake has made me look like an idiot among my clients and my colleagues.’ ‘It sounds like both of you need to consider how to deal with the damage done to your respective business reputations.’
It can soften and qualify demands, threats and negotiation ‘bottom lines’. ‘If he does not pay me $400,000 within the next seven days I’ll see him in court.’ ‘So you seem keen to have the matter sorted out promptly through an appropriate financial settlement.’
It can turn an absolute demand or a position into one possible option. ‘I insist that he supplies me with the correct fabric immediately and compensates me for this nightmare with $190,000, and I expect a full apology.’ ‘So at this point in time your preferred option comprises delivery of the grey woven fabric, a financial component and an acknowledgment of the error. Is that right?’

Reframe 5

Reframing in lockdown

 Here are some examples of how we can reframe negative statements when we are communicating and negotiating in lockdown. We explored some of these in an earlier post (#4).

 

‘He’s telling lies.’                                      ‘You doubt the accuracy of some of what he’s said?’

‘It’s all her fault.’                                      ‘So you had different expectations of her?’

‘I have my rights.’                                     ‘So you wish to exercise your options?’

‘I have a serious grievance

against them.’                                            ‘You feel strongly about the situation?’

‘He abused me verbally.’                       ‘So you felt his language was inappropriate?’

‘His repair work was shoddy.’               ‘Your perspective is that the work wasn’t done according to specifications?’

‘I can’t stand it when …’                         ‘You feel uncomfortable with …’

‘She totally ignored me.’                        ‘You’re saying there wasn’t enough consultation?’

‘We had no room to move.’                  ‘You felt that you had limited options?’

‘I think he was stealing.’                         ‘In your view some funds could not be accounted for?’

‘I’ll destroy you in court.’                       ‘So litigation is a potential option for you?’

Reframe 6

Appropriate reframing is a powerful tool for communication but it is not an easy skill and needs to be practised! We can also learn some standard reframes – as the above examples illustrate – to ensure that we personally adopt a positive perspective on how we frame our communications with others.

In the next post we explore the next element of LARSQ – summarising – and consider how it can help our lockdown communications and negotiations in homes and virtual offices.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #19: Effective communication strategies – Summarising

Acknowledgements

Mediation skills and techniquesThe content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.47-6.54 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.

Reframe image 1: Gina Prosch

Reframe image 2: Hunch

Reframe image 3: Thrive Global

Lockdown Dispute Resolution 101 #17: Effective communication strategies – Reframing in lockdown: Part 1

Reframe 3

In post # 16 we discussed the mediator’s tool of acknowledgement as an important way to provide feedback to the people we are communicating with in lockdown that we are understanding the messages they are communicating to us. Acknowledgement is the second of the five elements of the communication skill set represented by the acronym LARSQ – after listening.

This post focuses on the next element of LARSQ – reframing. Reframing is a complex and important communication skill – so it will take two posts to cover it properly. This first post explains reframing and the second assists with developing the skill of reframing. Understanding reframing and being able to enact it in lockdown communications can play an important part in the prevention, management and resolution of disputes.

Understanding reframing

Reframing is closely related to active listening. It is a responsive communication strategy. People communicate within a frame of reference based on how they see the world in terms of culture, experiences and sense of justice. The goal of reframing is to change this frame of reference in order to get the people we are communicating with to think differently about matters, or at least to get them to see things in a different light. Reframing is based on the fact that the language we use affects how we perceive the world (see also post # 4). By changing the type of language we use, we can change perceptions – and changed perceptions can then lead to changed behaviour – which is required for the prevention, management and resolution of disputes in lockdown.

Reframe 2When mediators reframe, they are engaging in a translation exercise through which they change the communication by moving it from one type of language to another. The intention is that the second language version is more palatable to the parties and more conducive to collaborative problem-solving.

Reframing takes place through mediators using different words, concepts and terms, using altered emphases and intonations, and otherwise qualifying what the parties have themselves said in order to provide a new frame of reference. Reframing not only changes the words being used but also changes the context of the parties’ statements. For example, this change might be from positive to negative, from positions to interests or from the past to the future. The shift in emphasis can help parties consider a more constructive frame of reference.

Where reframing is successful it leads to changes in perspective or perception for the parties and, as indicated, the altered attitude or view of the dispute can lead to the changes in behaviour necessary for constructive communication and interaction. While the original frame of reference may have had a negative effect on the management or resolution of a dispute, the new frame of reference will be conducive to constructive communication and problem-solving.

It’s important to emphasise that reframing is more than just a terminological exercise; it is about re-orienting the whole tone of the discussions. Where a party points out what is wrong, the mediator asks them to indicate what would be right for them. Where a party continually emphasises what they don’t want, the mediator gets them to talk about what they do want. Where a party goes on about what the other party wants, the mediator asks them to state what they themselves want.

There is similarity between reframing and the design of jokes. A joke-teller encourages a certain point of view but when the punchline is delivered the listener sees the preceding story in a different light. On the face of it, the punchline is incongruous but when the listener catches the joke by seeing the previous narrative in a new light, then the incongruous becomes congruous. The humour is caused by surprise, relief or delight, which occurs when the punchline is delivered, and the listener has to change his or her erroneous prior expectations. In other words, a scene is first described from one viewpoint and then rearranged, sometimes by a single word. Likewise, mediators have the capacity through reframing to restructure parties’ perceptions of a dispute situation. In joke-telling the switch-over is temporary and gives rise to humour whereas in mediation it can be long-lasting and give rise to insight. While the joke-teller reframes to achieve laughter, the mediator reframes to contribute to problem-solving.

The functions of reframing

Reframing can serve a number of different functions, though no single reframe can perform each one of the functions simultaneously. Nor is reframing a continuous form of mediator intervention; it is used selectively where it can perform one of the stated purposes. The various functions of reframing include:

Reframe 1

  • detoxifying language by removing accusations, judgments and verbal stings and barbs;
  • focusing on the positive by removing references to negatives and other destructive elements in the language;
  • focusing on interests by removing references to positions and solutions and reframing to underlying needs and requirements;
  • focusing on the future by removing references to the past and reframing to future needs and interests;
  • highlighting the general themes in a specific statement;
  • focusing on details, specific terms and concrete actions rather than general sweeping statements; and
  • mutualising problems by avoiding one-sided definitions and reframing to dual-sided formulations.

Potential challenges in reframing

There are potential challenges with the process of reframing. Problems arise if a mediator does not carry out the reframe appropriately, or when a suspicious or distrustful party finds it an alienating experience. In either event the party’s subjective assessment will be the same, namely that the reframing intervention has not contributed constructively to the mediation discourse. Therefore:

  • Reframing is a difficult art and if performed badly may be seen as mere parroting of what the parties say. (‘Why do you keep repeating everything I say …?’)
  • Reframing could be seen as manipulative. (‘That’s not what I said, you keep twisting my words …’)
  • Reframing could be perceived as the mediator favouring one party and losing his or her non-partisan role. (‘You seem to be agreeing with the other side all the time …’)

Nevertheless, appropriate reframing is a powerful mediator intervention and it can be readily improved through practice. One of the golden rules for avoiding the potential problems is to consciously maintain impartiality in the reframing role and to use the intervention in relation to both parties’ communications. However, it takes some trial and error to achieve the correct balance.

In the next post we explore what reframing looks like and how it can fulfil the functions listed above so that the skill can be developed for more effective lockdown communications in homes and virtual offices.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #18: Effective communication strategies – Reframing in lockdown: Part 2

Acknowledgements

Mediation skills and techniquesThe content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.47-6.54 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.

 

Reframe image 1: The Office of Rabbi Sacks

Reframe image 2: Lisa Christiansen

Reframe image 3: NJlifehacks