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Clients Choose Mediation Based on Mediator’s Words and Silences

Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.

Recently, I had the good fortune to attend an outstanding webinar by Professor of Social Interaction Elizabeth Stokoe, hosted by the National Association for Community Mediation (NAFCM). Professor Stokoe performs conversation analysis on interactions between mediators and parties. In her presentation, she discussed four common problems mediators may encounter during intake calls with potential clients who are involved in a neighbor-to-neighbor dispute. The problems can lead to the potential client rejecting the opportunity to mediate.

The four core problems that Professor Stokoe discussed are:

1) The Unknown Institution: A person with a broken arm already knows about doctors. However, when people need help resolving a long-simmering neighborhood dispute, they have no idea where to turn or what may happen there.

Experienced mediators become so assimilated that they forget what it was like to know nothing about the process. Professor Stokoe’s recommendation: Remember that virtually every first communication is with a pure beginner, and adjust explanations accordingly.

2) The Impossible Neighbor: It’s common to ask clients if they have tried to resolve things by talking. Every caller has only one response: reasonable communication with her neighbor is absolutely impossible. After all, if it weren’t, she would surely have succeeded by now. The idea that the neighbor is the sole source of the problem has become part of the caller’s self-image.

This is challenging for a few reasons. First, it means that parties are frustrated to hear that talking, which they’ve already found to be impossible, is the heart of mediation. Second, parties are instinctively wary of the notion that mediators will listen to both sides of the story. Intake callers frequently reject mediation at the very moment they’re reminded that both sides will be heard. Her recommendation: Use the right script. (See #3 below.)

3) Mediation Scripts: For mediators, “scripting” common interactions to plan around known pitfalls like Problem #2 can be very helpful in turning situations around and encouraging parties. However, it’s also possible to fall into a bad script routine that will drive clients away.

Mediator: “We wouldn’t take sides, we’d listen to both of you.”

After a long pause, the client replies: “I don’t think she’d cooperate.”

The client’s long silence indicates that the mediator said something to lose her support. She then gives a common refusal, which takes all the blame away from the caller and puts it on the unreasonable neighbor. However, a different script can arouse the same instinct yet make mediation hard to turn down.

Client: “I don’t think she’d cooperate.”

Mediator: “But you’d be willing to see our mediators, just to talk about it.”

This small change in phrasing highlights how the caller, as the good, reasonable person, would surely be willing to participate. The phrasing makes mediation quite hard to refuse.

4) Impartiality and Affiliation: In everyday speech we constantly show our empathy and affiliation to people we speak with. Mediators must tone down these tendencies to show neutrality. However, they sometimes do so to a point that drives parties away.

One example: If a mediator listens in silence, the caller will not “hear” a neutral response. Instead, she will keep trying to explain herself, hoping to get some sign of understanding from the mediator. Pure silence doesn’t sound impartial; it sounds unfriendly and judgmental. (Imagine how a speaker who says “She keeps calling me a racist…I only wanted them to tidy up the yard” would feel, if met with total silence.) Recommendation: small shows of empathy and encouragement will help parties feel understood.

I found Professor Stokoe’s webinar to be absolutely fascinating, and I’ll certainly explore more of her work. NAFCM hosts regular webinars on a wide variety of topics; fees vary slightly but costs for non-members are generally low while members may sign up for free.


Mary Novak

Mary Novak joined Resolution Systems Institute (RSI) in 2012 as Resource Center Director. In this role, she gathers, writes and publishes information on RSI’s key online resources: RSI’s Court ADR Resource Center; RSI’s Just Court ADR blog; and RSI’s monthly e-newsletter, Court ADR Connection. She also responds to inquiries concerning court ADR from… MORE >

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