Listening Is Not Enough!

From the Small Claims Courts blog of Leo Hura.

As a mediator I get job
satisfaction from hearing “thank you for helping us reach agreement” and remorse
at hearing “we just wasted three hours and got nothing done.” As a mediator I am
trained and experienced in listening. 
The real challenge is not whether I’m a good listener but whether I hear,
react, and utilize what clients are telling me to assist them to find common
ground and achieve agreement.  This
essay discusses hearing insensitivity and suggests a few tools which may
mitigate the problem.

A colleague of mine related the
following experience which involved two former partners, P1 and P2, who created
a one of a kind asset each continues to need after their partnership
dissolved.  They share.  They have a formal agreement.  They came to me because they are having
trouble living with the agreement and one blames the other for the failure.

In joint session P1 stated that
further clarity in the existing agreement is needed to solve the problems being
encountered. P2 told me the terms of the present agreement needed to be reversed
or a new agreement written.  Since
it is my practice to move to separate sessions after the opening I asked P1 to
stay and P2 to wait in the next room. 
For one or more of the reasons discussed below, I worked with P1 on a
modification of the existing agreement for the next hour.  You can surmise the rest.  When the mediation session had been
completed we were back full circle with each disputant stuck in their original
positions.  The clients were
disappointed. I was left there scratching my head.  How was this situation created, the
problem not discovered nor acted upon until it was too late to execute a change
in strategy?  Why do we miss hearing
the seemingly obvious? After discussion my colleague opined:

We’re taught to be good
listeners. 

• Subconsciously
  I let my judgments about the case get in the way.  Maybe I thought P1’s position was so
  logical that the only thing needed was to communicate the fine tuning of the
  existing agreement to P2.  Once that was
  accomplished P2 would naturally realize their thinking was off-base.
  
• Maybe I did not realize these positions, if held
  throughout, would lead to impasse. I needed to move to utilize dealing with
  impasse techniques from the get go.
  
• Separating the two parties and going into separate
  caucuses was a costly mistake. Caucuses are valuable but in this case not only
  were they inefficient but the separate sessions sapped the energy out of the
  mediation and turned destructive.
  
• I
  chose the wrong party with whom to start the separate sessions. 
  
• I did not reflect, reframe, summarize, nor put together a
  problem statement which would have given both myself and the clients an
  opportunity to validate we were on the same page.
  
• Whatever
  happened, after going into caucus the mediation failed.  I also met separately with
  P2, who listened carefully to what was being proposed in general terms,
  answered the questions which were being asked. P2 looked increasingly perplexed
  as time went on, and concluded by restating his original position.  Finally when I asked P2 whether it would be worthwhile to work on the
  details of fine tuning the existing proposal, P2 rejected the offer.
  
• When
  I went back to P1 and told them of the dilemma it was too late.  P1’s mindset already anticipated the
  remaining discussions would revolve around fine tuning the original
  agreement.  When I disclosed
  P2’s position had not changed from his original
  position the mediation was over. 
  

From there we moved towards a
discussion of what steps could have been taken to avoid such an unfortunate
outcome.

After this we discussed our
responses to the question – what can we, as mediators, do to not only listen but
also to hear.

• Use
  visuals to supplement the verbal communications.  In this case the visual could have
  been as simple as:

• Reframe, reflect, as a means of validating I heard what
  each client has stated correctly.
  
• Resist
  making judgments that one party’s position is the only logical option.  My perceptions and theirs may be totally different because there are
  circumstances in the case which they know which I do not know.
  
• Gauge
  the value of each separate caucus as it pertains to the case.  In the example above it might have
  been prudent to get a general understanding of the “fine tuning” needed to the
  existing agreement followed by a short session with P2 to do the same with
  regards to their proposal.  This might have
  given each party a chance to validate the mediation session was going in the
  right versus wrong direction.
  
• When there is no change in position on either side move
  towards avoiding impasse techniques rather than continuing down a dead end.
  
• No matter what may be stated, one client or both is going
  to be sensitive to the amount of time we are spending with them, their
  opponent, and overall. I need to be a conscientious time manager.
  
• Be flexible and open minded.
  
• Take
  good notes.  Organize notes in a manner which allows for
  comparative analysis and the addition of data as new information becomes
  available to fill in the gaps.
  
• Ask open ended probing questions.
  
• Be
  empathetic but keep the discussion moving narrowing the focus as time goes
  on. 
  
• Keep
  the waiting party in the loop.  At
  certain points in a caucus step out and have a few words with the waiting
  party.  Develop your own
  approach towards updating the waiting party and to gauge whether or not they
  are becoming overly edgy, downright uncomfortable, or even hostile.
  
• Work
  to get the parties into joint session and keep them there.  Use separate caucuses only out of
  necessity.

Despite the disappointment with
the case we ended the discussion by noting the need in our field for continuous
improvement.

                       

Leo Hura

Leo Hura, Mediator -JD - Facilitator -Conflict Resolution Training Program Developer practices mediation out of Honolulu Hawaii.  An experienced mediator Leo has turned his atttention to developing training programs designed to inform, educate, and promote the use of peaceful means for avoiding, preventing, resolving conflict in business with business, business with client, and… MORE >