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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

  • 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


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:



Let’s fine tune the
existing agreement


Let’s reverse the terms of
the present agreement or write a new agreement


  • 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
  • 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


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


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 >

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