Communication Skills in Mediation: Best Practices

Effective communication is at the core of successful mediation. Many people take for granted the role of communication in relationships. Those who strive to become mediators need to approach communication as an area worthy of analysis and practice. After all, mediators not only need to use strong communication skills to understand a dispute and to connect to parties; they also need to help the parties to engage in a constructive exchange when their own poor communication skills may be at the heart of the conflict.

Key communication skills in mediation are:

• listening
• summarizing
• dealing with emotions
• effective questioning
• neutralizing
• reframing

Effective listening — there is no substitute!

While mediation is very forgiving of mediator error, a mediator’s failure to listen, rather than “just hear,” may be fatal. When you hear, you take in sound. When you listen, you process the information received.

How to Listen

Prepare Yourself

• Consciously transition to role of mediator
• Quiet your mind

Engage in Active Listening

• Stop talking
• Focus on the speaker
• Take your time
• Maintain eye contact/attentive posture
• Acknowledge what is being said/suggested
• Acknowledge emotions
• Look for non-verbal cues
• Empathize
• Clarify
• Avoid assumptions
• Summarize

Rewards for Effective Listening

• Parties feel heard
• Parties trust the mediator, the process and, perhaps, each other
• Mediator obtains a clear understanding of the conflict
• Mediator obtains key information (what is said and not said)
• Provides a model of appropriate communication skills for parties

Summarizing is a mediator’s compass helping to keep everyone on the same track. Summarizing involves reflecting back to a speaker the essence of the communication. In order to summarize, a mediator must focus carefully on the message.

Reasons to Summarize

• Allow parties to feel heard
• Transition to new topic
• Identify underlying emotions/concerns
• Focus parties on problem solving
• Encourage parties that progress has been made
• Point out different views
• Keep track of the deal

Summarization Tips

• Be concise
• Choose your words carefully
• Move beyond words
• Omit blame
• Leave your judgment out of the summary, be neutral
• Ask if you are correct
• Paraphrase only if sensitive issue or precise wording is key

Key Phrases for Summarizing

• “As I hear you . . .”
• “Let’s see where we are . . .”
• “I’ve heard you say . . .”
• “We’ve resolved these issues . . .”
• “You’ve agreed on . . .”
• “We are still left with the issues of . . .”
• “What you are saying is . . .”

When in doubt, summarize!

Conflict and emotion go hand-in-hand. A mediator needs to deal with the emotions connected to the parties’ dispute. A failure to recognize and address the emotional underpinning of a problem will often make resolution in mediation impossible. On the other hand, when parties feel their emotions have been acknowledged they have less need to constantly repeat themselves and can move forward.

Acknowledging Emotions

Acknowledging emotions involves naming the emotion you perceive the person to be experiencing. Until emotions are given an appropriate place at the table, parties may need to act out or repeat themselves. These barriers to resolution in mediation may melt away once parties feel understood.

Acknowledging emotions does not include agreeing with or sympathizing with a party’s emotion, judging a party’s emotions, or taking action to “fix” a party’s feelings. The mediator should place the emotion on the party and not take it on personally. Examples of acknowledgement of emotion include:

Do say “You seem really upset.”
Do not say “I would be upset, too.”

Do say “It sounds like you have been frustrated for years.”
Do not say “I understand how frustrating it is.”

Emotionally Difficult Situations

Intense Anger

• Stay calm – check your response
• Acknowledge the emotion
• Don’t reciprocate (even if directed at you)
• Allow venting
• Draw the line at destructive anger

Intense Anguish

• Stay calm – check your response
• Acknowledge the emotion
• Normalize the emotion
• Offer comfort (tissue, pause, break if party desires)
• Do not lose neutrality

Role of Questioning in Mediation

Effective questioning serves many functions in mediation, such as:

• gathering information
• clarifying or understanding
• refocusing a wandering speaker
• stimulating thinking
• opening up a position
• closing in on a decision

Note: The goals and type of questioning may vary, depending on whether the mediator uses a facilitative, evaluative, or transformative approach.

Types of Questions

Open

Open questions help obtain information, and help a party to open up. Some open questions (and statements) include the following.

• “Tell me more about this . . .”
• “How does this affect you?”
• “What was your understanding of the situation?”
• “Can you describe . . .”

Use open-ended questions/statements early in the mediation to:

• gain an understanding of the problem
• allow parties to vent
• establish rapport

Closed

Closed questions, such as those listed below, require a one-word or two-word answer, often a “yes”, or a “no”.

• Did you tell her . . .?
• Did you call him . . .?
• Where were you when . . .?

Use closed questions to:

• re-focus a rambler
• direct a party to an issue
• check details
• get a quick response

Parties to mediation often are upset and might use inflammatory language. Requiring parties to refrain from using blaming, angry, or adversarial words as a ground rule for mediation might sanitize the atmosphere to the point that an honest exchange of thoughts and emotions becomes impossible.

However, a mediator must always refrain from using such language. Yet, a mediator is left with the job of dealing with unpleasant words and the feelings behind them. This task is accomplished by neutralizing the language. Neutralizing involves going around the incendiary words to reach the feelings or interests behind them.

Example:

Party: “She is an untrustworthy liar, and would take advantage of her own mother.”

Mediator: “You are concerned with being treated fairly and honestly.”

The mediator’s neutralizing language allows the parties to move forward to a negotiable issue, such as how each party would like to be treated.

Solid communication and negotiation skills will take a mediator far. There are times, however, when something more is needed. The following strategies and techniques may come in handy.

Brainstorming

This is a structured process for generating ideas. In brainstorming, parties are asked to come up with as many ideas to resolve an issue as possible. During the “brainstorm” there should be no commenting or judging of ideas. One person can build upon another’s idea. The goal is to create a safe environment for people to develop options.

Flip Side

asking one party to see the dispute from the perspective of the other party – reversing positions. While using the flip side can be very helpful, it must be carefully implemented. The following questions are examples of flip side: “What do you think they will do?” or “What would you do if you were in her shoes?”

Reality Testing

Mediators can use reality testing to let individuals explore for themselves the feasibility or viability of their ideas. The key to effective reality testing is asking good questions in a neutral tone.

Stroking

Verbal praise or encouragement. When done with honesty and respect, this approach can help to support people through rough spots and encourage continued participation.

Silence

The use of silence as a strategy can be very effective. For example, when an impasse is reached, sometimes simply sitting back and letting the parties think for a moment can create renewed movement. Silence can also create a moment of respect or consideration of the thought just expressed.

Feet to the Fire

Keeping parties at the table as momentum builds can lead to closure.

Recess

When staying in the process or in the room may undo the progress made, or if new information is needed, a recess from the mediation may allow things to cool down or give the parties a chance to gather or consider new information.

Apology

A sincere, well-timed apology often opens up a discussion or breaks an impasse. Note the importance of sincerity.

Scripting

Scripting involves helping a party to phrase a statement and to use an appropriate tone of voice in order to effectively communicate. For example, some parties may need assistance scripting an apology.

New Information

Identifying new information as it arises helps parties to incorporate this information into their existing perspective.

Shift

When parties are “stuck,” shift away from the issue or a solution to that issue and try a new subject.

Moving Pieces

Break down a problem or solution into multiple parts that give parties a way to maximize or compromise on various pieces of an issue.

Pull Back

When parties hit moments of frustration or feel as though they cannot make further movement, one of the most difficult but effective tactics may be for the mediator to let go of the prospect of settlement and let the party weigh their options.

Keep Talking

If the parties haven’t left, it is not over. (Even if coats are being put on…)

Humanize

If a party is acting “human,” help the other side to see the person as human.

Appropriate Humor

If you are blessed with the gift of laughter, use it to connect with people, relieve tension and change perspectives. If you do not have this gift, do not attempt to use humor.

What If

The mediator can test a party’s limits by posing hypothetical questions about reactions to potential movement from the other side. Be careful not to misuse confidential information.

Horse Trade

The parties can trade off on issues of differing importance in order to close a deal.

Mea Culpa

The mediator should accept blame or responsibility for misunderstandings or problems (even if it’s not really their fault). This often diffuses the tension.

Perhaps the most sophisticated and difficult communication skill for a mediator to master is the art of reframing an issue presented to move toward resolution.

Reframing involves taking a statement or a concern, then focusing on specific behaviors or options to be negotiated related to the statement or concern. Ultimately, reframing allows parties to look at a situation from a different perspective.

Reasons to Reframe

• Turn a negative to a positive
• Turn from complaints to negotiable behaviors
• Move from the past into the future
• Keep the discussion moving

Example:

Party: “We have been at this all day and have not made progress.”

Mediator: “What can you do to help us get this done?”

Example:

Party: “I can’t trust her because she tries to steal my clients.”

Mediator: “How would you like her to deal with your clients?”

Artful reframing is a wonderful tool for breaking away from the complaints and positions of the parties and moving towards solutions.