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www.adrpeacemaking.org NONCONFRONTATIONAL TECHNIQUES TO SETTLEMENT By Richard M. Calkins Great emphasis has been placed on peacemaking as the strategy of the true mediator. To achieve the level of “peacemaker,” the mediator needs to develop techniques which are nonconfronta-tional and will build rapport and trust in the mediator. Experience has shown that if the parties and counsel trust the mediator, his absolute neutrality and determination to nd a resolution which is fair and reasonable, they will compromise more than intended when entering the process. The following are nonconfrontational techniques to build this rapport and trust. 1. Don’t play devil’s advocate . It is strongly urged that the mediator not play devil’s advocate. It is too easy, when playing devil’s advocate, to get into a “friendly” argument with counsel or a party to make a point, even if you remind them that you are merely playing devil’s advocate. Playing devil’s advocate means that you are taking the other side to a dispute and this is confrontational. A sophisticated attorney and party can perhaps appreciate your role, but more times than not the exercise becomes more confrontational than intended. 2. Testing a party’s position . If the mediator wishes to make a point that is contrary to the position of the attorney or party with whom he is caucusing, the more effective way is to point out that the other side has made this argument (not the mediator) and how can “we” answer it. Or, the jury may wonder about this point, and perhaps we need to address it now. In other words, a position which is contrary to counsel’s or the party’s belongs to the other side and never the mediator. The mediator can still argue it but in the name of the other side. In this way, an argument and confrontation are avoided. 3. Learn the art of agreeing . One of the great techniques of nonconfrontation is to agree. To tell someone, when an argument is developing, that you agree, or you don’t disagree, is the most disarming thing you can say. When the mediator is getting into a “discussion” with counsel, which is turning into an argument, if the mediator will simply say I agree, or I don’t disagree, the argument side of the discussion will end immediately. At a later time, the very same subject matter can once again be discussed and there generally is far less resistance to the point the mediator wishes to make. For the mediator to say that he agrees, or he doesn’t disagree, with something he knows to be wrong, does not mean he is being won over to a wrong position. It means he wants to be supportive and work with the party and counsel to a resolution with which they can live. The “agreeing” builds instant rapport and trust for it also signals that the mediator is neutral and trying hard to understand a party’s position. 4. Be supportive . Rather than question a party’s position which the mediator believes to be wrong, it is helpful if the mediator asks questions which initially show support and interest. By asking supportive questions, while at the same time raising arguments of the other side to test the position, the mediator can build rapport. If a party is taking an untenable position, this will become apparent without the mediator saying so. 5. Be interested in the party’s position . Even if the mediator believes a party and counsel are espousing an erroneous position, the mediator should show, at least initially, interest in it. This can be done by asking supportive questions or reviewing favorable evidence. As the caucuses progress, these arguments can be answered or demonstrated to lack credibility. However, because the mediator demonstrated interest in the party’s position, he can only be complimented for his efforts. 6. Develop a team concept . The mediator should try to build a team concept with each side. In other words, by showing interest in a party’s position and raising arguments that can be made to support it, the party and counsel know that the mediator is on their side and will argue their position to the best of his ability to the other side. This team concept must be developed on both sides – absolute neutrality must always be maintained. Some mediators use the “we,” “our,” “us” approach to develop the sense that the mediator is working for the party. Rather than say, “how would you answer this argument,” you might say, “how can ‘we’ answer this argument,” “what is ‘our’ response going to be,” etc. 7. Develop strategy . With each side, the mediator can work to develop a strategy which will enhance their positions. For example, a party may wish to convey the idea that unless there is signicant movement on the other side, they may terminate the process. A strategy may be to convey this idea without allowing it to sound like a threat. Or the mediator and counsel might discuss a strategy for getting the other side into a certain range for settlement. Counsel will appreciate any suggestions the mediator has for the strategy they should use. Developing strategy likewise develops rapport and trust because it shows interest. 8. Be a good listener . The mediator should be a good listener and allow the party or even the lawyer to vent if this is needed. In this setting, it is better that the mediator merely listen and not try to answer any erroneous statements or defend the other side if they are being attacked. By being a good listener the mediator is again showing interest. 9. Be interested in the parties and counsel . It is helpful, to the extent possible, if the mediator can show interest in the parties and counsel themselves. Discussing children, grandchildren, sports, etc. demonstrates that the mediator is interested in the persons themselves and is not there just to force resolution of their problems. Showing personal interest in the welfare of a party who has been injured builds strong rapport. INTERNATIONAL ACADEMY OF DISPUTE RESOLUTION WINTER 2010
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