Mediation Tips - Communication
Master the One Word Question
One-word questions keep the conversation going, make the other person more comfortable and tend to elicit more information with less intrusion and/or confrontation.
The three most common one-word questions are: "But?", "And?" and "So?".
But? encourages the speaker to tell you what he/she is really thinking. Psychologists tell us that the message always follows the "but."
And? asks the speaker to tell you more about the subject without your having to ask specific or detailed follow-up questions.
So? seeks an explanation, probing the speaker's thought process. It is less argumentative than "why?".
Hint: One-word questions are most effective when asked in a soft tone, stretching the word out a little, e.g., "Aaannd?" Be careful to avoid sarcasm.
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Use Silence
As a group, lawyers can't stand silence. The truth is, you don't learn anything with your mouth open. Resist the urge to answer group questions, speak first or respond instantly. By listening, you are able to gauge your audience, calibrate your response and move the conversation in a productive direction.
Note: This tip works with neutrals, opposing counsel, clients, colleagues and significant others.
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Email: Smoking Gun or Silver Bullet – Part 1
Email is powerful evidence. Below are some practical tips to help you and your clients write the silver bullet, not the smoking gun.
1. Proofread. Because email is typed quickly, it is often littered with errors. These typos undermine the communication quality and sometimes change its entire meaning, e.g., leaving out a "not".
2. Don’t send emotional email. Do not hit the "Send" button when angry or under the influence of any strong emotion or substance. It is okay to type the email, then save it to the draft folder to review in the morning. If you are not sure what to do with a "hot" email, ask a colleague to review it.
3. Never send an email you would not want to see on the front page of the paper. Do not send sexual, racist, libelous or disparaging email. No matter how private you think it is, your email is a permanent, discoverable record and you will not enjoy seeing it in a public forum.
4. Double check the “To” line. Misaddressed email is at least embarrassing and at most, a breach of confidentiality.
5. Be careful forwarding email. Consider if the person receiving the email wants it. Summarize the email string and let the recipient know why the forward is important. Delete prior recipient addressees in the email string; they may not want their names and email addresses revealed to others.
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Email: Smoking Gun or Silver Bullet – Part 2
Email is powerful evidence. Below are some drafting and composition tips to help you and your clients write the silver bullet, not the smoking gun.
1. Is email the right communication medium? Email is quick and informal, but lacks emotional nuance. Consider the telephone for quick personal contact or a letter when taking a formal position.
2. Use the subject line. Tell the reader your message or frame your request in three or four words on the subject line. Many recipients scan the subject lines in their inbox to prioritize email. Don’t make them guess about yours.
3. Get to the point. State your message or request in the first sentence. Follow up with the explanatory detail. Consider one email per subject to help the receiver file your email.
4. Use good grammar and punctuation. Email is often the only written record of an interaction/transaction. It needs to be clear, concise and readable. When reviewed at deposition or introduced at trial, it should be prose of which the writer is proud.
5. Avoid internet/text messaging jargon. The use of emoticons and internet abbreviations, i.e., LOL, BTW and WTF trivialize communication and reflect poorly on the sender. Also, do not type in all capital letters; it is considered shouting.
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Mediation New Year’s Resolutions
New Year's resolutions are restatements of good intentions that somehow slipped away. Here are some old thoughts renewed for 2012.
For Litigators:
1. Write shorter briefs and exchange them with the other side.
2. Limit exhibits.
3. Be on time.
4. Bring the right people.
5. Start the settlement dialogue before the mediation.
For Mediators:
1. Read and outline the briefs.
2. Treat all parties and counsel with respect.
3. Be on time.
4. Don’t reveal confidences, even indirectly, by asking questions.
5. Get the parties’ and counsel’s buy-in before making a mediator's proposal.
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Adverse feedback – in your Blind Spot?
We deal with adverse feedback, whether from colleagues, opponents or significant others, by first determining its validity, then taking appropriate corrective action. But what if the adverse feedback falls in a blind spot, i.e., an aspect of our behavior that everyone but us can see? We lose the opportunity to correct the inappropriate behavior which poorly impacts our relationships with others.
Four recommendations:
1. Acknowledge. Acknowledge and accept that everyone has perceptual blind spots and you are not the exception.
2. Ask, “What if it is true?” How would you change your behavior if the criticism were true? Use this knowledge as a basis to experiment with new and improved ways of interacting with others.
3. Invite Clarification. Although it is difficult, ask the other person for clarification and details. Try not to be defensive and see the interaction from their side.
4. Ask for help. Ask a trusted friend or colleague to help you explore the adverse feedback and your blind spots. This may be painful, but also productive. Over time you will change, tensions will diminish and your life will be easier and more productive at home, at work and at mediation.
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Emotional Intelligence - Downside/Upside
Emotional intelligence, as outlined in Daniel Goleman's 1995 bestseller of the same name, is the ability to recognize and regulate our moods and emotions combined with empathy, motivation and strong social skills. We would think that emotional intelligence would correlate with good negotiation outcomes, however, recent research suggests it is a mixed bag. Where negotiations are based on relationships, i.e., continuing business, neighbor disputes or marriages, emotional intelligence is a critical skill. When the interaction is temporary and/or adversarial, preparation and bargaining skills prevail.
The Downside
Emotionally intelligent people develop rapport and trust by sharing their thoughts and feelings while recognizing and empathizing with others emotions and interests. However, this may lead to premature and/or inappropriate information disclosures which allow the other party to gain a negotiation advantage.
Emotional intelligence has little benefit in predicting or influencing how the other side will respond in a negotiation. Although interpersonal skill may smooth the negotiation, it does little to make the other side accede to your position.
The Upside
Emotional intelligence can help you avoid two common emotional pitfalls - poor anger management and the "carry over effect."
Angry negotiators make poor decisions either by making unattainable demands or by passing up good deals. When you recognize your own anger, frustration or disappointment during a negotiation, you can self-regulate by taking a quick time out. Standing up and walking around the conference facility or riding the elevator downstairs for a breath of fresh air clears your head and productively refocuses your energy.
We all suffer from the "carry over effect." An argument with a significant other or a bad morning in court can put us in an unhappy mood and impair our judgment. Think about your last sour mood and ask where it came from. Simply identifying its source will start to lift it so you can concentrate on the task at hand.
Finally, emotional intelligence helps you "read the room." Is the tone angry, constructive or bored? Asking, "What can I bring to this situation to make the next interaction productive?" and acting on the answer advances the negotiation.
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Building Emotional Intelligence
Emotional intelligence is the ability to recognize, evaluate and respond to emotions – yours and others. It is a learned skill that promotes and smooths interactions personally and professionally. Here is a quick guide.
1. Recognize and name your emotions. I am feeling sad, angry, happy, abandoned.
2. Accept and feel your emotions. As simple as it sounds, many people edit or deny what they feel. Emotions come in waves; let the wave crest, break and pass.
3. Mind the gap. We think that our emotional reactions are instantaneous. In fact, there is always a gap, no matter how small, between stimulus and response. Observe the gap and practice expanding it. You then have time to choose the appropriate response.
4. Select an appropriate response to your emotion. For example, counting to ten and breathing defuses anger. Expressing anger in a rage escalates that anger and the damage it causes. Listening without interruption or judgment creates empathy.
5. Logic and explanation do not work. It is unproductive in the extreme to explain to someone why they should not feel the way they do. You will feel underappreciated for trying to help and the other person will think you just don't get it. A lose - lose situation.
6. Closing thought. Emotions drive decisions. Paraphrasing Maya Angelou, people never remember what you said, rarely remember what you did, but always remember how you made them feel.
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Meet the Other Side
With the death of the joint session, we hear people complain," I came all the way from (fill in the blank) and never met the other side" or "Even if we were not going to settle, I would have at least liked to see them" or "Was there anyone in the other room?"
Rarely do the parties or their lawyers want to meet the other side for a joint session. The almost universal belief is that joint sessions promote unproductive advocacy, increase emotional volatility and are a waste of time. What's lost is the ability to just say "hi" and connect with the other side. It is too easy to demonize people you have not met.
During the mediation, insist that the mediator conduct a quick "meet and greet." The matter will go better for it.
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Managing Anxiety
Anxiety is apprehension about a future event with an unknown outcome. It manifests as excessive worrying, sweaty palms, shortness of breath and sometimes dizziness or stomach ache. Everyone experiences anxiety on a first date, interviewing for a new job or at a high-stakes mediation. Here are some tips for managing anxiety in the negotiation setting.
1. Reframe anxiety as excitement. The basic technique to quell anxiety is to interrupt the worrisome thought and replace it with a productive one. Interruption: "I am feeling very anxious about the upcoming negotiation.” Replacement: "I am very excited about the upcoming negotiation." When the worrisome thought returns, repeat the process.
2. Stop worrying and start working. Anxiety is a call to action. When you feel it, do something. Outline the brief, call the client or start assembling the exhibits.
3. Focus on positive outcomes. Anxiety provokes negative "what if..." thoughts that focus on the worst possible results. Mentally change the "what if" to a positive outcome and focus on it.
You have the resources to do a great job. Make anxiety the change agent propelling you to a successful result.
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Four Questions
Self-awareness starts with observing our choices. We cannot control what happens but we always control our reaction. Before you speak, consider these four questions.
1. Is it necessary? Sometimes quiet is better.
2. Is it true? Untrue statements damage our credibility.
3. Is it kind? Kindness, even in adverse circumstances, de-escalates conflict and increases the chance of peace.
4. Will it help? Test helpfulness from the recipient's point of view.
This small self-observation exercise leads to more effective communication, fewer misunderstandings and a smoother life.
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Smartphone and Negotiations – Bad Match
Negotiation research from Rutgers and DePaul demonstrates the adverse consequences of checking your smartphone while negotiating face-to-face. The researchers set up negotiating pairs where one person received and checked messages (Receivers) and the other did not (Onlookers).
Receivers achieved 25% lower dollar outcomes because they were distracted and unfocused. Onlookers, even though they came out better financially, reported lower satisfaction with the negotiations and judged their counterparts untrustworthy.
During personal interactions, silence and put away your smartphone. You will be perceived as courteous, respectful and attentive, obtain better results and build good will.
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Managing Secret Information
The Dilemma
Occasionally a litigator has secret evidence, a document or witness, which will blow up the other side's case. If you reveal it, one of two things happens. Either the other side significantly alters their position and the case settles or they discount it and find a work-around. If it's the latter, you have given away the secret evidence with little or no gain.
The Considerations
1. The least effective thing to do is to ask the mediator to tell the other side you have secret, block-buster evidence that will destroy their case but not allow him to reveal the actual evidence. This junior-high tactic has no impact and undermines your credibility with the mediator and the other side.
2. Before mediation, discuss the secret evidence with colleagues to make sure it has the impact you think it has.
3. Can you discover more similar or supporting evidence?
4. Can the evidence be broken into pieces so you can reveal it a little at a time?
5. Test the evidence on the mediator. Watch for her body language reaction. If there is any doubt about the mediator's ability to keep the evidence confidential, don't reveal it.
6. Wait. Patience is a mediation virtue and timing is the key ingredient in all tactical decisions. Engage the negotiation, watch how it unfolds. If the other side is obstinate in their position, the new evidence will probably have low impact and should not be revealed.
7. Is the secret evidence a "mover" or a "closer", i.e., does it move the negotiations along or close out the case. If it is only a mover, save it until you need it to close.
Managing case critical evidence requires thought and tactical consideration. Carefully applying the above factors will yield the best results.
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What's the Magic?
As a mediation caucus ends, counsel looks at the mediator and says, "Go work your magic." What is mediation magic, where does it come from and how can we use it?
Mediation magic is the confluence of priming, commitment and focus.
1. Primed to Settle. The parties and counsel are primed to settle because they made four agreements before the mediation started. They agreed to mediate. They chose the mediator. They worked out the scheduling and agreed how to split the fees.
2. Commitment to Settlement. Counsel and parties committed to settlement when the lawyers wrote briefs with the clients' input and approval. They negotiated about process and arranged travel schedules. Finally, they anted into the game by paying the fees.
3. Focus on Settlement. We live in a world of distractions. However, at mediation everyone (mediator, counsel and parties) is focused on settlement. There are few distractions and they most often take the form of lunch and afternoon cookies. A little email checking and calling the office hardly counts.
The next time the mediator leaves the room and you tell her, “Work your magic,” reinforce your commitment to settlement, focus on process or key evidence and prime the mediator with your expectation of a substantive response.
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Absorber or Reflector?
Are you an "absorber" or a "reflector"? What about the people with whom you communicate? Absorbers need time to let ideas sink in and are uncomfortable with simultaneous, multiple options. Reflectors quickly react and respond to ideas and options and are easy to engage in brainstorming.
Most litigators are reflectors and unconsciously expect their communication partners to be the same. When talking to absorbers, reflectors become frustrated because the absorber is not responding and seems to be lost. Absorbers on the receiving end are overwhelmed and need time to think and respond. NB: Many clients and significant others are absorbers.
Four strategies help mitigate this communication difficulty.
1. Recognize that people have different communication styles. You communicate better when you mirror the other person's style.
2. Slow down. Watch for clues that the other person is not following you, e.g., puzzled expression, faraway look or zoned out.
3. Check in with the other person. Ask polite, non-judgmental questions that start with "what, how or tell me.”
Good question: Tell me your reaction to the various alternatives?
Poor question: How could you not possibly understand the options?
4. Wait for a response. Then discuss, do not argue. Absorbers hear argument as telling them they are wrong. Never a good communication strategy.
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Public Speaking – Part I – Managing Anxiety
Public speaking is Americans’ worst fear and a litigator’s anxiety-induced nightmare. You argue to judges and juries, speak to trade groups/bar associations and make client presentations to develop business. Anxiety manifests as racing heart, dry mouth, shaky voice, blushing, trembling, sweating, lightheadedness and nausea. However, anxiety is good. It sharpens focus and keeps you from “mailing it in.”
Here are 7 tips to help manage your anxiety:
1. Prepare. Draft a detailed speaking outline. Do not write your talk word for word. Focus on message and the value delivered to your audience. Note the stories and examples that humanize your talk and engage the audience.
2. Assemble the PowerPoint slides. Everyone expects PowerPoint slides with a presentation. Do not use your speaking notes/outline for the slides. Instead, insert video clips, cartoons, pictures and charts to illustrate your teaching points. Use your speaking notes as the handout, reproduced on letterhead, triple-spaced for audience note taking.
3. Humor? Almost every public speaking text suggests that you open with a joke or use humor. Be careful! Not everyone thinks the same thing is funny and the opportunity to offend is almost unlimited. Also, even with the best material, some people are just not funny. If you feel compelled to use humor, stick to a short self-deprecating story.
4. Practice. Speaking coaches advise that you run through your talk, front to back, with visual aids at least 7 times before presenting it.
5. Get coaching. Talk to friends and colleagues for tips and strategies. For public speaking training in a proven and supportive atmosphere, join Toastmasters.
6. Arrive early. Walk around. Get the feel the venue. Arrange the podium and seating. Run the audio-visual equipment. Place the handouts.
7. Breathe. Slow, rhythmic, deep breathing calms you and sends your brain the message that you are in control and everything is fine.
With a well prepared talk and everything in place, you are on the way to a successful presentation.
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Ask for Advice
We are reluctant to ask for advice because we fear people will judge us as incompetent or think we are imposing. Research at Harvard and Wharton demonstrates the opposite. Advisors believe you are smart and perceptive to ask them for advice. Below are tips for asking for advice, building on that advice and following through.
Be specific.
When asking for advice, be specific about the situation you are struggling with. Define the problem. What is its background and context? What are your goals?
Build on the advice.
Once you receive advice, do not reject it. Rejecting advice risks offending your advisor and cutting off access to a valuable resource. Instead, build on the advice. Ask questions. Discuss the risks and opportunities. Break the problem and proposed solution into steps. Together, find ways to mix, match and modify the advice to address the challenge.
Give and get feedback.
Relationships thrive on feedback and interaction. Your advisor will be flattered to hear back from you. Report what worked, what didn't and what's in progress. Discuss the next step(s). Take advantage of the feedback loop to build a long term relationship.
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Fight the iHunch!
Steve August, a New Zealand physiotherapist, coined the term “iHunch” to describe people’s slouched posture while using their mobile phones. Amy Cuddy, a social psychologist and Harvard Business School professor, cataloged the iHunch’s resulting maladies and solutions.
Physical. Bending your neck with its 10 to 12-pound head at a 60° angle to read your phone puts a 60-pound strain on your neck and, over time, freezes your upper back in a forward curve. Dowagers’ hump, formerly a condition of the elderly, is now being diagnosed in teenagers.
Emotional. Slouching over your phone with neck bent forward, shoulders collapsed and arms drawn in, is the posture of the depressed, sad, fearful and powerless. Poor posture does not just reflect emotional states, research shows it creates them.
Performance. In a study involving mock job interviews, participants were assigned to slouching posture or upright posture groups. The slouchers were more negative, reported lower self-esteem and greater fear.
The Solution. Acknowledge that iHunch is a problem and you are probably doing it. As soon as you realize you are iHunching, straighten your back and neck, press your shoulders back and down and bring your device to eye level. Longer term, stretch and massage the muscles on the sides of your neck and between your shoulder blades.
Read more: Your iPhone Is Ruining Your Posture – and your Mood, Amy Cuddy, The New York Times, December 12, 2015.
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Your Body Changes Your Mind
Everyone knows the mind influences the body, i.e., you can think yourself sick. However, it also works the other way around. Research at the Harvard Business School (HBS) demonstrates that, by adopting power or submissive poses, you directly influence your psychology and physiology.
Powerful, confident people make large, expansive gestures, take up space and are risk takers. Conversely, the less confident slouch, fold into themselves and are risk averse. These physical traits are reflected in body hormones. The powerful have high testosterone, the dominance hormone and low cortisol, the stress hormone; the less confident, the opposite. In the HBS experiment, MBA students assumed either powerful, expansive poses or meek, submissive poses. Results were measured subjectively by a willingness to gamble and objectively by hormone testing. The students' minds and bodies reflected the poses they assumed.
Before your next stressful situation, such as a job interview, court appearance or client meeting, privately assume a power pose for two minutes. Try the sprinters' Victory pose, standing tall with your arms extended overhead in a "V" or the Wonder Woman pose, standing tall, legs apart with fists on hips. Your energy and confidence grow as your hormone levels shift. Your authentic self comes through as you handle the stressful situation.
BTW, yoga works the same way. The poses both relax and energize you.
Watch more: Your Body Language Shapes Who You Are, Amy Cuddy, TED Talk, January 2012.
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Mindfulness Tools 1 and 2: STOP and STOPSi
As lawyers, we are under constant pressure and stress at home, work, mediation, arbitration and trial. Mindfulness inserts a wedge of awareness between the stressor and your response. Using the mindfulness tools STOP or STOPSi will be a situation saver and a life changer. Below are the tools’ detailed steps.
STOP
Stop what you are doing and thinking.
Take a breath. Taking a breath or two focuses you in the present, slows your thoughts and calms emotions.
Observe, without judgment, yourself, others and the situation. Be aware of your body sensations, emotions and thoughts.
Proceed with the appropriate words or actions.
If you are unsure of the appropriate words or actions, STOP and add Si, “Set an intention.”
STOPSi
Stop what you are doing.
Take a breath.
Observe, without judgment, your body sensations, emotions and thoughts.
Proceed to
Set an intention for something you want to do or be, e.g., to listen, be patient or simply be kind.
After using these tools for two weeks, you will notice a calmer demeanor, clearer thinking and better outcomes.
Read more: Mindfulness in the Heat of Conflict: Taking STOCK, Leonard Riskin and Rachel Wohl, Harvard Negotiation Law Review, Spring 2015
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Mindfulness Tool 3: Take STOCK
Mindfulness tool #3, Take STOCK, builds on the STOP and STOPSi tools. It is a check-in technique to see how you are doing with your set intentions and if change is necessary.
Take STOCK
Stop what you are doing and thinking.
Take a breath. Taking a breath or two focuses you in the present, slows your thoughts and calms emotions.
Observe, without judgment, your body sensations, emotions and thoughts.
Consider the following:
a) Are you maintaining your intention to listen, be patient or kind? Do what to change it?
b) What are everyone’s positions and interests?
c) What’s next? Choose an action that serves your goals.
Keep going
After using these three mindfulness tools for two weeks, you will notice a calmer demeanor, clearer thinking and better outcomes.
Read more: Mindfulness in the Heat of Conflict: Taking STOCK, Leonard Riskin and Rachel Wohl, Harvard Negotiation Law Review, Spring 2015
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Technology Changes People
Technology is our ubiquitous blessing and bane. It speeds communication, fosters community and opens a world of information. At the same time, it shortens attention span, blurs focus and impairs the ability to learn and think deeply. Worse yet, it has an adverse effect on empathy and trust.
The iPhone Effect describes an experiment where 200 people were paired off and assigned to discuss serious or trivial topics. The experiment's key component was what people did with their mobile phones: 21 put them out of sight and 79 did not. Observers graded the quality of their conversations and the participants answered post experiment questionnaires. The observers rated the conversations without mobile phones as significantly superior in context and depth, no matter the subject. The participants with mobile phones present reported less empathetic concern for one another and less fulfilling conversations.
The mere presence of a smart phone caused participants to miss valuable communication clues, i.e., facial expressions, changes in tone or volume, eye contact and body language.
Other research concludes that a lack of empathy leads directly to a lack of trust which adversely impacts successful negotiation, by lowering cooperation, problem solving and compromise.
The Take Aways.
Interpersonal:
Put away your smart phone, especially at a family meal or on a date. Pay attention to and engage with the people in your life.
Negotiation:
Resist the urge to multitask. When working in the office, turn away from the screen(s) and focus on the conversation, whether in person or on the telephone.
Mediation:
Make sure the clients know they are more important than your devices. When the mediator comes in, shift your attention to an all-inclusive, problem solving negotiation.
Read more:
The iPhone Effect, Shalini Misra, 2014
Negotiation is Changing, Noam Ebner, 2017
The Shallows: This Is Your Brain Online, Nicholas Carr, 2010
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Ask in Person
Recent research shows that requests made face-to-face are more likely to be granted than requests by email. However, the fascinating finding was, requesters underestimated their face-to-face success rate and overestimated their email success rate.
The Experiment: College students were given a script to ask selected strangers to fill out a personality survey. Half made face-to-face requests and half used email. 14,000 interactions were recorded. Requesters consistently predicted a 50% success rate, whether by direct contact or email. The results demonstrated serious underestimation of face-to-face success (50% predicted, 70% success) and, even worse, an overestimation of email success (50% predicted, 10% success.)
The Explanation: The underestimating, face-to-face requesters focused on their distress in asking in person but did not account for their target's discomfort in saying "no" to someone directly. Because digital communication has become the norm, requesters were more confident using email. They did not consider how painless it is to say "no" or hit the delete key.
The Take-away: When a request is important, step outside your comfort zone and ask in person. Email is quick and convenient but it's too easy to decline, ignore or delete.
Read more: Ask in person: You're less persuasive than you think over email, M. Mahdi Roghanizada and Vanessa Bohns, Journal of Experimental Social Psychology, March 2017.
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What is Active Listening?
Every mediation and self-help relationship text advocates active listening without much definition or guidance as to how to do it. Active listening is not patiently waiting for the other side to finish speaking and then arguing your points.
Active listening is comprised of three behaviors.
1. Paraphrasing: restating what you heard without judgment, argument or reframing it to your advantage.
2. Inquiring: asking questions to clarify and deepen your understanding, again without arguing, e.g., "wouldn't you agree that …" or "yes, but don't you think that …"
3. Acknowledging: listen for and acknowledge the emotions underlying the statement, e.g., "you sound frustrated with the litigation process."
All negotiations are interpersonal interactions whether with another lawyer, your significant other or your children. If you do not actively listen first, you will not understand where they are coming from and you certainly will not influence them to change their position.
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