In this post we think about the psychological and neuro-science impacts on our efforts to prevent, manage and resolve disputes in lockdown. This is another area where we need to enact our dispute resolution agency to be effective communicators in our homes and workplaces during COVID-19.

Mediation and the Brain

Psychology is about how the human brain works. The workings of the human brain are an increasingly important knowledge base for mediators and in lockdown we can learn from the art of mediation in this regard. In lockdown discussions we need to be aware of, and take into account, our relative emotional and psychological states.

We can no longer assume that individuals make utilitarian decisions on a rational basis, in the promotion of their own self-interests and in terms of objective cost-benefit analyses of their options. Such assumptions have been challenged, amongst other things, by the disciplines of behavioural economics, cognitive psychology, game theory, neuro-science and decision theory.

In mediation and in lockdown communications we need to expect some level of ‘irrationality’ in terms of our problem-solving and decision-making as humans.  Studies in cognitive psychology, for example, have demonstrated through observation, experiment and surveys that many people are guided by cognitive and social biases, heuristics and other unconscious factors when they make decisions and not by conscious rational considerations.

Various cognitive and social biases have implications for mediation and other DR processes:

First, the confirmation bias involves parties being selective in their choice of facts and evidence, accepting and emphasizing what supports their preferred outcomes to a situation and ignoring, marginalizing or rejecting the information which undermines it. This bias is essentially a form of one-eyed self-deception which is widespread in dispute situations.

Second, the anchoring bias involves parties being unconsciously influenced by a number or dollar figure provided from negotiating opponents, or even from an extraneous source, and adjusting their expectations and negotiation range accordingly.

Third, the optimistic over-confidence bias involves persons betting themselves ‘against the odds’ and expecting to do better than the average, for example franchisees in a particular industry or claimants in vehicle accident compensation cases.

The many unconscious biases in human decision-making cause parties in mediation to diagnose conflicts inaccurately and to intervene inappropriately, not only frustrating attempts at settlement but prospectively causing disputes to escalate in extent and intensity. The biases can also operate cumulatively – for example an employee’s confirmation bias about the circumstances of their removal from office is likely to exacerbate their unrealistic over-confidence about achieving a positive outcome to a dismissal claim, such as reinstatement, or a higher than normal damages settlement.

While artificial intelligence (AI) claims to avoid or annul many of these features of the human condition, decision-making biases can also be inadvertently embedded in software and algorithms and thereby impose residual preferences on decisions.

Mediation and Neuro-Science

Neuro-science adds to the knowledge base of psychology through observation and analysis of actual brain activities in human subjects. Through imaging of physiological, electrical and chemical impulses in the brain, scientists can observe the impacts on the brain’s neural pathways, and different parts of the brain, when a patient or subject is exposed to different sounds, sights, words or other stimuli.

A compelling illustration of these insights is provided in relation to the phenomenon of loss aversion, one of the cognitive biases previously identified by psychologists. When subjects undergoing brain-scanning are exposed to the single words ‘loss’ or ‘gain’ there are profound differences in the observed neural impacts – in broad terms the former term has an effect several orders of magnitude greater than the latter, in respect of both intensity and duration. In this instance the brain science reinforces orthodoxy long prevalent in mediation theory: parties who perceive they are facing a loss are likely to be risk-accepting and seek an outcome away from the mediation, but if they perceive a gain at the mediation table they are likely to be risk averse and favour settlement.  Brain scanning provides corroboration and a deeper explanation for the phenomenon, founded on human survival instincts, which responds to threats more intensely than to rewards. While survival instincts arose originally in relation to physical threats, they are now also a product of perceived unfairness, undignified treatment, negative emotional experiences or unfulfilled expectations in the mediation room.

Through brain-scanning and other investigative procedures, neuro-scientists have provided far-reaching evidence and understanding of how electrical messaging and chemical releases operate under conditions of stress, emotion and ambivalence, all of it potentially relevant to mediation.  For example, mirror neurons in one party’s brain can be activated by agitations in those of another person, leading to emotional contagion among disputants in high-level conflicts.  The chemicals dopamine, oxytocin, adrenalin and cortisol are released in response to specific pleasurable or stressful circumstances, including those encountered in the mediation room, and they affect respective parties’ behaviours, judgments and decisions.  The plasticity of the brain, however, entails that its operation is not always predictable and it can change its habits and patterns over time.

Another dimension of brain science derives from the organ’s bicameral structure. In 2017 Australian judges were addressed on the divided brain by an English psychiatrist, Ian McGilchrist, his work drawing on science, philosophy, literature and culture. He accentuated the significance of brain bicameralism in many aspects of human affairs and societal development – and by implication in dispute resolution activities. A more dated ‘left brain-right brain’ notion had been prevalent decades earlier, associating the left with attributes such as logic, language and analysis and the right with factors such as emotion, affect and art. This construct had in some respects been overtaken by work on the triune brain, and its implications, referred to above.

McGilchrist’s work essentially re-affirms in more erudite terms the significance of the two hemispheres, while emphasising that both sides are involved in all brain functions, from thinking to feeling and from mathematics to imagination, and continuously communicating with each other. However, despite the hemispheres being interdependent in all brain activities, each has significantly different ways of operating.

At a simplified level the brain spheres can be differentiated as follows: the left hemisphere is analytical and linear, it fragments experiences and operates with patches of information as opposed to whole entities and it uses categories and concepts in predictable patterns – ‘claimant’, ‘respondent’, ‘damages’ and the like. It has a narrow focus of attention and tends to decontextualize, divide and simplify, providing a ‘re-presentation’ of the world. Above all the left hemisphere is where our competitive instincts reside, it is utilitarian in focus and, importantly for mediation, it is convinced of its own rectitude and has difficulty changing its mind.

The right hemisphere is where new experiences are initially processed. It provides a big-picture assimilated view of the world, deeper and wider than the localised short-term view of the left. It has integrative powers, providing a more complex and connected picture of reality than the left, and it is more intuitive, imaginative and empathetic. Here there is a richness of thought, stimulated by gesture and symbol, poetry and myth, music and metaphor. Moreover, the right hemisphere operates largely at an unconscious level with few of our experiences and effective decisions, that McGilchrist suggests, operate within our actual consciousness.

The hemispheric modes of experience can be significantly opposed in their approaches and are sometimes in states of conflict. Human decision-making, whether in personal, business or mediation contexts, is initially dictated by the right hemisphere, albeit at an unconscious level. The complexity of thought in the right segment is then translated into the (sometimes simplistic) language and categories of the left. The ongoing development of the left hemisphere over the ages has made it more assertive than its partner and enabled it to manipulate reality, shutting down the right’s holistic view of the world – deeming it quaint and out of touch with a reality created by the right. Its penchant for self-consistency entails that it finds it difficult to accept that it might be wrong, a common syndrome in mediation. These factors explain the optimistic over-confidence encountered repeatedly in the mediation room (from both parties and advisers) which provides a challenge to mediators and other dispute resolvers.

It is not possible to depict definitively how emerging knowledge bases in psychology and neuro-science can be given effect at the mediation table. It is no easy task, for example, for mediators to identify parties’ cognitive and social biases accurately as these operate instinctively, without even the relevant party’s conscious awareness, and the other party and mediator may well remain unaware of them. Nonetheless all knowledge about human decision-making is potentially relevant in mediation and provides a tentative foundation for understanding the dynamics of parties’ negative dispositions and behaviours and what might be done about them. Moreover, while the biases may induce a lack of rationality to mediation decision-making, there is some degree of predictability in the different forms of irrationality.

John Wade used the metaphor of the mediator’s tool-box of interventions, implying that mediators will not always be able to adopt standardised procedures and linear logic but may have to be reactive, responsive and instinctive in using different tools in the process.  The National Mediator Accreditation System provides some guidance on mediator responsibilities in relation to conflict, negotiation and culture but this is of only limited proportions. Psychology and neuro-science are definitely new tools for the mediator’s tool-box.

In lockdown communications we don’t have mediators with us thinking about all these complexities to communications. So we need to enact our dispute resolution agency and be aware of the psychological and neuro-science elements at play. In the next post we consider some of the specific psychological elements we can be aware, and take account, of in our lockdown communications.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #23: Effective communication strategies in lockdown – dispute resolution psychology basics: Part 2

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) paras 6.72-6.99.

Brain image 1: Harley Therapy

Confirmation bias image 1: Medium

Neuroscience image 1: Nature

Prof Ian McGilchrist image: Byron Clinic

Prof John Wade image: Mediate.com

In this last post of the sequence exploring the communication tool of LARSQ for effective lockdown communications and negotiations, we consider a specific focus of questioning in mediation practice – reality testing. Reality testing involves asking hypothetical and reflective questions to help the parties assess whether the elements of any proposed agreement will work outside the mediation room in their real world.

In our efforts to prevent, manage and resolve disputes in lockdown, we don’t have a mediator to help us with reality testing. So we need to enact our dispute resolution agency and remember to reality test for ourselves.

Reality testing

Although a little controversial in terms of different views on what levels of mediator intervention are appropriate in (facilitative) mediation, many mediators believe that one of their functions as a mediator is to encourage the parties to settle. This function is important because mediators are in a unique position to influence and support the parties’ decision-making. However, most mediators don’t want to see the parties reach just any sort of agreement – they want the parties to decide on mutually agreeable, workable and sustainable solutions to their problem. This is why reality testing is important.

In acting as an agent of reality, a key strategy to help the parties consider whether a settlement or solution is realistic and viable is to question them about what the proposed solution would look like in operation in the context of their lives outside mediation, helping them to cogently and realistically think through the risks, options and choices available to them.

When mediators ‘reality test’, a function that often happens in separate meetings with the parties, they challenge the parties to face the legal, financial and personal realities of their situations, to reflect systematically and practically on positions, behaviours or attitudes, and to think beyond the present to possible future consequences.  It is not unusual for negotiating parties to be optimistically over-confident about their situations and mediators challenge such illusions.

For example, in a parenting dispute two separated parents might consider the potential viability of each having the children live with them for an equal amount of time – perhaps one week with one parent and the next week with the other. Realistically this would require each parent to be able to organise school drop-offs and pick-ups for the 5 school days that the children are with them. However, if one parent is a shift worker with variable hours and no-one who could help them, this needs to be considered in terms of the realistic viability of the proposed equal time arrangement.

Reality-testing can relate to factors peculiar to a dispute, such as lack of evidence or pressure of time, or to environmental realities, such as litigation costs or dangers from external competitors. Mediators can assist negotiating parties to better appreciate their weaknesses, risks and realistic options.

Mediation is about what is ‘do-able’, and if the parties are holding out for objectively unattainable settlements, mediators can facilitate more realistic expectations. This can be achieved by providing information (for example about litigation risks), by querying (for example on the likelihood of agreements being enforceable) and by asking reflective and hypothetical questions.

Reflective questioning

Reflective questioning includes both empathic and clarifying questions, which we discussed in yesterday’s post. Empathy refers to the ability to put oneself in the shoes of another, to understand things from their perspective. As we’ve noted before, empathy does not signify agreement, nor does it amount to sympathy with, or compassion for, another. It involves convincing a person that the listener has entered their world of understanding, if only temporarily. Empathic questions show a sender that the receiver has understood what they said. They involve reflecting the affect within the sender’s statement. Through empathic questioning the reality of a situation can be discovered.

Building on the scenario used yesterday about Karlie and Nigel, some examples of empathic questions are:

• ‘So, Karlie, it sounds like you felt disgrace for you and your family because of the allegations made in this story …?’
• ‘Karlie, it sounds like your health suffered and that you became more despondent from then on …?’
• ‘Nigel, it sounds as if you were concerned about the legitimacy of information supplied to you after Karlie and her family complained about this story …?’

While empathic questions seek to check out the feeling or attitude behind a statement, clarifying questions seek confirmation of material aspects of disputes, such as facts, information and priorities identified by the parties.

For example,

• ‘Karlie, what would be the benefit to you of a public apology from Nigel about the story?’
• ‘Nigel, if you apologised publicly to Karlie about the story how would that impact your career as a journalist?’

Hypothetical questions

The ‘what-if’ or ‘if-what’ question is a frequently used mediator intervention and can be helpful in reality testing and in getting the parties to consider options hypothetically without being committed to them.

• ‘Nigel, what if Karlie were to agree to accept your proposed compensation figure; what would you then be able to commit to in relation to her positive publicity campaign?’

• ‘Karlie, if Nigel would agree to pay for your positive publicity program, what would you be willing to accept in relation to the amount of compensation?’

It’s challenging in lockdown communications for us to be effective agents of reality. For reality testing to work without the support of a mediator, the people communicating must be genuinely committed to collaborating to constructively discuss an issue and problem-solve. We need to enter lockdown communications not only with some effective communication skills and strategies – such as reality testing – up our sleeves, but also with the right attitude to preventing, managing and resolving disputes.

In the next post we look at some of the psychology basics that are relevant to effective communication and negotiations.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #22: Effective communication strategies in lockdown – dispute resolution psychology basics

Acknowledgements

Some of the content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.57-6.58 with the kind permission of the authors. Thank you – Laurence and Nadja! Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities. The post also includes content from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 104-5.

Reality testing image 1: High Performing Systems Inc

Reality testing image 2: High Performing Systems Inc

Reality testing image 3: Clare A Piro Attorney and Mediator

In lockdown communications enacting the elements of LARSQ can help to ensure that we can effectively negotiate and prevent, manage and resolve disputes. Questioning is the last element of LARSQ – but the skill of asking appropriate questions is critical for constructive communications and problem-solving. Mediators use questioning throughout each stage of the mediation process, and we can learn from the ways in which mediators practice the art of appropriate questioning.

If one new thing we tried to do each day was to ask more clarifying questions instead of making assumptions and assertions, then our communications in lockdown would be exponentially more effective and respectful.

Appropriate questioning

There are different views as to the nature and extent of the questioning undertaken by mediators. In some mediation models, mediators conduct the procedure almost entirely through the use of questioning. In others, mediators ask very few questions of the parties but encourage them to explain certain facts or feelings directly to each other. The degree of questioning often depends on the stage and phase of a mediation. Mediators may be reluctant to ask certain kinds of questions in joint session or early in a mediation but may feel it appropriate to ask them in separate session or towards the end of a mediation. The mediator also needs to keep a check on questioning by professional advisers who may be present – as they may seek to interrogate or cross-examine the other party.

The table below explains some of the different categories of questions, provides an illustration of each, the objectives for which each category can be used and the circumstances in which the particular category might be appropriate. They are based on a hypothetical mediation involving Karlie Meringe, a famous entertainer, and Nigel Nagel, a newspaper reporter. The dispute concerns Karlie’s defamation claim arising from a story in the Sunday paper claiming that Karlie had been involved in a scandal whilst on tour in Berlin.

At a broad level, no type of question is entirely unsuitable; suitability always depends on the context and the circumstances of the communication exchange. As a general rule, though, questions like open and clarifying questions are to be preferred for successfully encouraging positive and respectful questioning.

In the next post we consider a specific approach to questioning that often features in the mediation process when mediators meet separately with the parties: reality testing.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #21: Effective communication strategies in lockdown – Appropriate questioning: Part 2

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.55-6.56 with the kind permission of the authors. Thank you – Laurence and Nadja! Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

Questioning image 1: Royal Society of Chemistry

Questioning image 2: Sonru

Questioning image 3: Digital Promise

In posts # 17 and 18 we discussed the mediator’s tool of reframing. Reframing is the third of the five elements of the communication skill set represented by the acronym LARSQ – after listening and acknowledging. This post looks at how mediators use the fourth element of LARSQ – summarising – when they practice the art of mediation to support parties in their efforts to constructively communicate and problem-solve. We also discuss the related skills of paraphrasing and reiterating. In lockdown we can put these skills into practice as we endeavour to prevent, manage and resolve disputes.

Summarising

A summary of what the person we are communicating with has said is a useful way to ensure that there is an accurate developing account of the conversation and it can be a way of demonstrating to that person that they have been heard properly and understood.

In mediation practice, summarising generally involves a mediator briefly restating or recapping important features of the preceding discussion and identifying the dominant feelings of both parties.

Summarising can be a powerful intervention in mediation – as well as in our lockdown communications – because it can achieve a range of positive objectives. For example, summarising can:

• Provide a neutral and organised version of a sequence of discussion.
• Emphasise vital issues which might otherwise have been overlooked.
• Simplify convoluted exchanges.
• Remind people that progress is being made.
• Signpost how that progress is being made and reaffirm the common direction of the discussions.
• Provide acknowledgment to people that they have been understood.
• Establish a bridge into the next round of discussions.
• Assist with establishing trust between people by using – in the summary – some of the key words they have said.

Good summarising requires a range of micro-skills, such as retaining important information, recalling it and condensing it. It is always a selective process in that in a mediation, mediators pick up on positive progress to date and present it in a constructive and concise statement. It is also selective in that mediators pick up only on what is useful for the communications – not everything gets summarised. The reason why mediators are selective in enacting the summarising process is that selectivity allows them to create a positive and encouraging basis for the parties to move forward with their negotiations. However, summaries also need to be balanced in the sense that they deal fairly with what each side has said.

In their book Mediation Skills and Techniques master mediators Laurence Boulle and Nadja Alexander provide an example of summarising in action. The example is based on a hypothetical dialogue from a mediation involving a widow and a relative of her deceased husband in relation to the distribution of his estate. The deceased’s wife, Mrs Rona Steele, is negotiating with a distant cousin, Ms Gabriella Gold, as a step prior to distribution of the estate of the late Mr Rod Steele.

Mediator: ‘Now, Mrs Steele, you’ve told us that you initially found it difficult to negotiate with Ms Gold because you felt that she could have dealt with you more humanely and sympathetically. You also said that while you might not be able to resolve all your personal differences, you are prepared to offer Ms Gold a small portion of Mr Steele’s estate. And, Ms Gold, you acknowledged that you could have handled things differently with Mrs Steele and demonstrated greater empathy for her loss. You also explained the pressures you are under at home and said that you would be prepared to consider a financial offer from Mr Steele’s estate as opposed to receiving the hand-crafted antique furniture you originally requested. Is that correct …? Now, Mrs Steele and Ms Gold, let’s move forward and look at how we can craft a financial arrangement that you can both live with …’.

Summarising is useful throughout a process of communicating or negotiating. At the very least, there is great value in being clear that each person’s positions, needs and interests have been accurately understood. Summarising is also useful if there has been a break in communications – it allows everyone in the conversation to revisit where the discussions got to before the break occurred and serves to refocuses people. Summarising can also be used when there is an impasse in communications or negotiations. In this situation it has the function of emphasising the positive progress that has been made to date and providing building-blocks for future dialogue and negotiation.

Good summarising can be one of the most effective interventions for mediators and is an essential tool in their mediation toolbox.

Paraphrasing

In a mediation, mediators use paraphrasing to closely control the dialogue between the parties and to pick up on important issues and reflect the salient points in the mediator’s own words. Mediators focus on factors that are evidently important to the parties such as major concerns, interests, needs and feelings, thereby ensuring there is a response to these aspects of each party’s message. Because paraphrasing involves the mediator intervening in the dialogue with clarifying and empathic questions, and in summarising and reframing some of the conversation, it requires delicacy and discretion in choice of language.

Here is an illustration of the paraphrasing method based on the hypothetical discussion mentioned above:

Mediator: ‘Ms Gold, Mrs Steele is saying that although you may be justified in making a claim on the estate, the way you have approached this has caused her a great deal of pain, suffering and sadness. I’m wondering how you would like to answer her on that …?’

Ms Gold: ‘Yes, look … you have my deepest sympathy at this time. I know you and Rod loved each other and it must be really hard for you. Sorry if my manner has upset you. Rona, you were always good to me when I visited, you had an open door and listened to my woes. Sadly, this situation is no different … My partner has left me and taken all the furniture. He just cleared out the house. You know I don’t work and have four children to feed … I am desperately in need of support.’

Mediator: ‘Mrs Steele, Ms Gold has expressed her regret at the upset she has caused you. She has acknowledged the close relationship that you and Mr Steele had and how bereft you must feel at his loss. Ms Gold also emphasised how good you have been to her in the past. Can you tell her how you feel now that you have heard that …?’

Mrs Steele: ‘Well, it’s the first time I’ve ever heard words of kindness from Gabriella … But I am still not willing to part with any of the antique furniture that Rod’s great-grandfather hand-crafted …’.

In a mediation, mediators ensure that paraphrasing is done in an even-handed way so that both the parties’ communications are paraphrased. In this way, it can be used to set up a pattern of direct communication between parties, and it can break what Australian mediation legends Ruth Charlton and Micheline Dewdney have called the ‘Oh but’, ‘Yes but’ pattern of communication: ‘Oh but I didn’t understand that’s what you wanted.’ ‘Yes but I had told you only two days before …’. ‘Oh but I called and texted you …’ ‘Yes but …’ (2014: 250). However, if this is the only way of keeping parties communicating constructively it can quickly become strained and artificial.

Reiterating

In mediation practice, mediators need to prevent anything of value ‘falling off’ the negotiation table. In the heat of the moment it is possible for an apology, a concession or a significant offer to go unheard by the listening party because of their anger, psychological deafness or intent on winning. Here it is wise for mediators to ask the speaker to repeat the value statement, when the timing is appropriate for this intervention. For example: Mediator: ‘Nigel, I think you were making an offer in terms of compensation a few moments ago, when we got side-tracked by the question of Karlie’s health. I’m wondering if you would like you to repeat that offer now …’.

Alternatively, mediators might themselves reiterate the statement of value when circumstances allow, for example: Mediator: ‘A few minutes ago I heard Nigel say that he would print a formal apology in the forthcoming Sunday paper. Is that correct, Nigel?’

Reiteration can be used to step up a weak signal from one party that is not being heard by the other, for example: Mediator: ‘Karlie, Nigel has indicated on a number of occasions that the story is not a personal attack on you nor on your work as an artist, which he says he admires very much. Is that what you have heard also?’

Generally, reiteration is one of the tools in the mediator’s toolbox which can be used in all situations in which parties are talking past each other and not picking up on important messages.

LARSQ is certainly a significant skill set for mediators. Enacting the elements of LARSQ can also support quality, constructive communications in our daily lives – especially when we are faced with challenges such as lockdown. Posts 20 and 21 complete our sequence of posts considering LARSQ – they focus on appropriate questioning.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #20: Effective communication strategies in lockdown – appropriate questioning: Part 1

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.60-6.66 with the kind permission of the authors. Thank you – Laurence and Nadja! Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

See also: Ruth Charlton and Micheline Dewdney, The Mediator’s Handbook: Skills and Strategies for Practitioners (The Law Book Co, 3^rd ed, 2014).

Summarise image 1: The Ideal Teacher

Summarise image 2: GSA Learning Support

Summarise image 3: Adventures with Miss B

Paraphrasing image 1: Virtual Library

Reiterating image 1: Spinfold

In post # 17 we discussed the mediator’s tool of reframing. Reframing is the third of the five elements of the communication skill set represented by the acronym LARSQ – after listening and acknowledging. The first post on reframing explained the skill and its functions. This post explores what reframing looks like in order to assist with developing reframing as a skill we can use in our lockdown communications and negotiations. Putting the skill of reframing into practice can help us to prevent, manage and resolve disputes in lockdown.

Revisiting reframing

Reframing is a responsive communication strategy that is closely related to active listening. The goal of reframing is to change a frame of reference in order to get the people we are communicating with to think differently about matters, or at least to get them to see things in a different light. A successful reframe leads to changes in perspective or perception for the parties. This altered attitude can lead to the necessary changes in behaviour for constructive communication and interaction. While the original frame of reference may have had a negative effect on the management or resolution of a dispute, the new frame of reference will be conducive to constructive communication.

Reframing in action

Reframing serves a number of different functions. In their book Mediation Skills and Techniques, Laurence Boulle and Nadja Alexander show how a mediator would bring these functions to life by way of a table of examples. The examples are based on a hypothetical dispute between a buyer for a boardroom furnishings company and a supplier contracted to provide high-end luxury fabric for upholstering executive furniture. The fabric was delivered one week late and was the wrong shade and texture. The buyer had requested grey woven silk but the supplier had delivered fuchsia faux silk.

Reframing in lockdown

 Here are some examples of how we can reframe negative statements when we are communicating and negotiating in lockdown. We explored some of these in an earlier post (#4).

‘He’s telling lies.’                                      ‘You doubt the accuracy of some of what he’s said?’

‘It’s all her fault.’                                      ‘So you had different expectations of her?’

‘I have my rights.’                                     ‘So you wish to exercise your options?’

‘I have a serious grievance

against them.’                                            ‘You feel strongly about the situation?’

‘He abused me verbally.’                       ‘So you felt his language was inappropriate?’

‘His repair work was shoddy.’               ‘Your perspective is that the work wasn’t done according to specifications?’

‘I can’t stand it when …’                         ‘You feel uncomfortable with …’

‘She totally ignored me.’                        ‘You’re saying there wasn’t enough consultation?’

‘We had no room to move.’                  ‘You felt that you had limited options?’

‘I think he was stealing.’                         ‘In your view some funds could not be accounted for?’

‘I’ll destroy you in court.’                       ‘So litigation is a potential option for you?’

Appropriate reframing is a powerful tool for communication but it is not an easy skill and needs to be practised! We can also learn some standard reframes – as the above examples illustrate – to ensure that we personally adopt a positive perspective on how we frame our communications with others.

In the next post we explore the next element of LARSQ – summarising – and consider how it can help our lockdown communications and negotiations in homes and virtual offices.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #19: Effective communication strategies – Summarising

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.47-6.54 with the kind permission of the authors. Thank you Laurence and Nadja! Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

Reframe image 1: Gina Prosch

Reframe image 2: Hunch

Reframe image 3: Thrive Global

In post # 16 we discussed the mediator’s tool of acknowledgement as an important way to provide feedback to the people we are communicating with in lockdown that we are understanding the messages they are communicating to us. Acknowledgement is the second of the five elements of the communication skill set represented by the acronym LARSQ – after listening.

This post focuses on the next element of LARSQ – reframing. Reframing is a complex and important communication skill – so it will take two posts to cover it properly. This first post explains reframing and the second assists with developing the skill of reframing. Understanding reframing and being able to enact it in lockdown communications can play an important part in the prevention, management and resolution of disputes.

Understanding reframing

Reframing is closely related to active listening. It is a responsive communication strategy. People communicate within a frame of reference based on how they see the world in terms of culture, experiences and sense of justice. The goal of reframing is to change this frame of reference in order to get the people we are communicating with to think differently about matters, or at least to get them to see things in a different light. Reframing is based on the fact that the language we use affects how we perceive the world (see also post # 4). By changing the type of language we use, we can change perceptions – and changed perceptions can then lead to changed behaviour – which is required for the prevention, management and resolution of disputes in lockdown.

When mediators reframe, they are engaging in a translation exercise through which they change the communication by moving it from one type of language to another. The intention is that the second language version is more palatable to the parties and more conducive to collaborative problem-solving.

Reframing takes place through mediators using different words, concepts and terms, using altered emphases and intonations, and otherwise qualifying what the parties have themselves said in order to provide a new frame of reference. Reframing not only changes the words being used but also changes the context of the parties’ statements. For example, this change might be from positive to negative, from positions to interests or from the past to the future. The shift in emphasis can help parties consider a more constructive frame of reference.

Where reframing is successful it leads to changes in perspective or perception for the parties and, as indicated, the altered attitude or view of the dispute can lead to the changes in behaviour necessary for constructive communication and interaction. While the original frame of reference may have had a negative effect on the management or resolution of a dispute, the new frame of reference will be conducive to constructive communication and problem-solving.

It’s important to emphasise that reframing is more than just a terminological exercise; it is about re-orienting the whole tone of the discussions. Where a party points out what is wrong, the mediator asks them to indicate what would be right for them. Where a party continually emphasises what they don’t want, the mediator gets them to talk about what they do want. Where a party goes on about what the other party wants, the mediator asks them to state what they themselves want.

There is similarity between reframing and the design of jokes. A joke-teller encourages a certain point of view but when the punchline is delivered the listener sees the preceding story in a different light. On the face of it, the punchline is incongruous but when the listener catches the joke by seeing the previous narrative in a new light, then the incongruous becomes congruous. The humour is caused by surprise, relief or delight, which occurs when the punchline is delivered, and the listener has to change his or her erroneous prior expectations. In other words, a scene is first described from one viewpoint and then rearranged, sometimes by a single word. Likewise, mediators have the capacity through reframing to restructure parties’ perceptions of a dispute situation. In joke-telling the switch-over is temporary and gives rise to humour whereas in mediation it can be long-lasting and give rise to insight. While the joke-teller reframes to achieve laughter, the mediator reframes to contribute to problem-solving.

The functions of reframing

Reframing can serve a number of different functions, though no single reframe can perform each one of the functions simultaneously. Nor is reframing a continuous form of mediator intervention; it is used selectively where it can perform one of the stated purposes. The various functions of reframing include:

• detoxifying language by removing accusations, judgments and verbal stings and barbs;
• focusing on the positive by removing references to negatives and other destructive elements in the language;
• focusing on interests by removing references to positions and solutions and reframing to underlying needs and requirements;
• focusing on the future by removing references to the past and reframing to future needs and interests;
• highlighting the general themes in a specific statement;
• focusing on details, specific terms and concrete actions rather than general sweeping statements; and
• mutualising problems by avoiding one-sided definitions and reframing to dual-sided formulations.

Potential challenges in reframing

There are potential challenges with the process of reframing. Problems arise if a mediator does not carry out the reframe appropriately, or when a suspicious or distrustful party finds it an alienating experience. In either event the party’s subjective assessment will be the same, namely that the reframing intervention has not contributed constructively to the mediation discourse. Therefore:

• Reframing is a difficult art and if performed badly may be seen as mere parroting of what the parties say. (‘Why do you keep repeating everything I say …?’)
• Reframing could be seen as manipulative. (‘That’s not what I said, you keep twisting my words …’)
• Reframing could be perceived as the mediator favouring one party and losing his or her non-partisan role. (‘You seem to be agreeing with the other side all the time …’)

Nevertheless, appropriate reframing is a powerful mediator intervention and it can be readily improved through practice. One of the golden rules for avoiding the potential problems is to consciously maintain impartiality in the reframing role and to use the intervention in relation to both parties’ communications. However, it takes some trial and error to achieve the correct balance.

In the next post we explore what reframing looks like and how it can fulfil the functions listed above so that the skill can be developed for more effective lockdown communications in homes and virtual offices.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #18: Effective communication strategies – Reframing in lockdown: Part 2

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.47-6.54 with the kind permission of the authors. Thank you Laurence and Nadja! Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

Reframe image 1: The Office of Rabbi Sacks

Reframe image 2: Lisa Christiansen

Reframe image 3: NJlifehacks

In post # 15 we noted the importance of reflecting skills for achieving active and effective listening in lockdown. When we enact reflecting skills we give feedback to the person we are communicating with about our understanding of their message. We can do this, for example, by summarising accurately facts, feelings and interests, by asking empathic questions and by using particular verbal cues. Another important way to provide feedback that we are understanding messages being communicated to us is to acknowledge the facts, feelings and interests present in the message.  Mediators use acknowledgement consistently throughout the facilitation of a mediation session.

Acknowledgement is one of the five elements of LARSQ – which stands for listening, acknowledging, reframing, summarising and questioning. This post focuses on the importance of acknowledgement for effective communication and for the prevention, management and resolution of disputes in lockdown.

Acknowledging

Acknowledgement is an important part of communication because it is critical to human engagement and attention. When a person’s emotions, needs, interests, fears and priorities are acknowledged they feel heard and recognised, they feel understood (even if not agreed with) and they feel as though what they are experiencing matters and is valued. When people feel heard and understood, they are more likely to cooperate, collaborate and engage in constructive problem-solving. This is why acknowledgement is a critical key to preventing, managing and resolving disputes in lockdown.

It isn’t hard to show acknowledgement, however it can be easy to forget to acknowledge the person we are communicating with. We discussed reflective listening verbal cues as acknowledgement in post #15. We can use phrases such as ‘It sounds as though that’s been a difficult time for you?’ ‘What you are saying is that you feel a strong sense of frustration about the situation?’. Or ‘It sounds like the main priority for you is …?’. We can also do something as simple as nodding our head or offering words of acknowledgement from our attending skills set: for example, ‘I see …’, ‘Uhuh …’, ‘Yes …’, ‘Oh really?’. Reframing, summarising and asking empathetic questions are additional ways to achieve acknowledgement (we discuss these skills in coming posts).

In a mediation, a mediator acknowledges each of the parties and also encourages the parties to acknowledge each other. When we don’t have a mediator present to help us in our homes and virtual offices in lockdown, we have to use our dispute resolution agency to reflect on the situation and experience of the person we are communicating with and recognise that experience. Engaging our capacity to acknowledge others requires (at least) 2 things. First, a willingness to acknowledge and engage with emotions; and second, we need to be able to empathise with others.

Acknowledging emotions

Michal Alberstein in an article entitled ‘Forms of Mediation and Law: Cultures of Dispute Resolution’ published in 2006 (cited below) noted that an emphasis on recognising, and allowing the expression of, emotions is a unique characteristic of mediation. Emotions are rarely acknowledged, for example, in adversarial processes like litigation. It is part of the art of mediation to be able to acknowledge emotion in a controlled way, so that the expression and recognition of emotion brings relief and enhances the quality of communications, as opposed to disrupting and damaging communications.

Albertsein says that emotions are an ‘integral part of the conflict picture’, they are important sources of information, and they have a rational level which supports parties in developing their understanding of each other. Bush and Folger have famously said that ‘there are facts in the feelings’. Fisher writing with Shapiro about emotions, has said that emotions can present important positions, needs and interests which cover real concerns that need to be answered and addressed.

In lockdown communications and negotiations, we shouldn’t be afraid of emotions – not of our own emotions nor of the emotions of the person we are communicating with. However, we do need to follow Fisher and Ury’s famous adage of ‘separating the people from the problem’. That is, we need to enact the principle of depersonalization so that emotions are managed constructively.

Professor Kathy Douglas and Dr Clare Coburn published a great article on emotions in mediation in 2014 (cited below). Kathy and Clare are dear friends and colleagues of the ADR Research Network. Kathy is Dean of the Graduate School of Business and Law at RMIT University and was also part of the co-founding cohort of the Network in 2011. Kathy and Clare’s article presents research on emotion in mediation conducted with mediators working with the Victorian Civil and Administrative Tribunal (VCAT). In the article they note the importance of an acknowledgement of the emotional impact of conflict on a person because it can result in increased understanding and also self-understanding. That is, when parties hear their own perspective and emotion reflected back to them by a mediator they develop a deeper self-awareness. Kathy and Clare note that it can also assist the other party to hear the emotional perspective of their ‘opponent’ in ways that may deepen their understanding.

I saw the magic of acknowledgement in this way when mediating with Associate Professor Libby Taylor in the Bond Family Dispute Resolution Clinic. Libby and I are co-directors of the clinic in which we both practice as accredited FDRPs. Libby and I are also co-directors of the Bond Dispute Resolution Centre – started by Professor Laurence Boulle and others back in 1989.

Libby and I were mediating a parenting dispute between two separated young parents who had a toddler. They both clearly loved the toddler very much but they were at odds about a number of issues relating to his care and parenting. The father raised a particular concern about the toddler’s nutrition. He felt the mother was not firm enough about ensuring the child ate fruit and vegetables. In the mediation the father was able to express this concern to the mother and his communications indicated he was very angry about the current state of affairs.

We asked the mother to tell the father how hearing this made her feel. She explained to the father that she struggled with getting the toddler to eat fruit and vegetables. She felt as though the father was judging her and saying that she was a bad mother and this made her feel very sad and upset. The father was able to acknowledge this sadness, saying that it wasn’t his intention to make her sad and that he thought she was actually a very good and caring mother – his focus was squarely on being concerned about the child’s best interests in relation to the issue of nutrition. The mother was able to acknowledge his focus and share that her focus was also on the child’s best interests. The young parents were able to exchange their different perspectives.

After extensive discussion, the father apologised saying – ‘I’m sorry I’ve been so hard on you about this’. He was able to engage with his own emotions around the issue of nutrition and explained that his own mother had been very strict with him when he was a child – and this was a strong influence in terms of how he looked at the issue of nutrition for children. The mother, knowing her former mother-in-law and her personality, was able to acknowledge that she understood where the father was coming from and that perhaps his own experiences around food in childhood had been difficult. From there Libby and I could begin to help the parents develop a plan about how the toddler’s nutrition could be managed in the different households into the future. The air in the mediation room seemed to clear after these acknowledgements. The parties’ faces seemed relieved and ‘lighter’. Communication on other issues also became easier as a result.

In their article Kathy Douglas and Clare Coburn document some of the empirical research data from interviews with the VCAT mediators. One participant said: ‘Acknowledging [the parties’] emotions is very important … because that’s the very thing that’s been overwritten. If people say [to them], ‘Get a life, get real!’ [That] just shuts people down and they feel that they haven’t been heard. They think: nobody has taken any notice of what I’m trying to say so it’s not very important’ (p.130).

Acknowledgement and empathy

An ability to engage with emotions in lockdown communications and to acknowledge the experience and situation of the person we are communicating with also requires a level of empathy.

Empathy is the ability to put yourself in the shoes of another, to understand things from their perspective. Empathy extends beyond recognition and understanding of another’s feelings and experience: it acknowledges and values the other person’s fundamental human needs. Having empathy for someone is not the same as agreeing with them. It’s also different from feeling sympathetic or compassionate towards them. Instead, when we are empathetic, we convince the person we are communicating with that we have entered their world of understanding. When we use empathic questions, or reflect back with an empathic acknowledgement, we show the other person that we have made an effort to engage with and comprehend what they have said. Acknowledgement, empathy and recognition between people in communications and negotiations can overcome a crisis in interactions.

As human beings, we all have a basic capacity for empathy, and we are also socialised to extend that capacity because in every culture, even though empathy may manifest in diverse ways, some level of empathy is important to the quality of human relations. In order to harness the communication benefits of empathy, we must be present in our communications with others, paying attention and prepared to engage and connect. Listening empathically means that we are focused on what the other person is saying, observing, feeling, needing and requesting.

We noted above that summarising and paraphrasing are ways in which positive acknowledgement might be made by confirming understanding. If someone asks in a conversation ‘Do you know what I mean?’ we could simply reply ‘Yes I understand’. But if we paraphrase what they have said we can convey a much deeper sense of understanding. In expressing empathy, non-verbal communication aspects (see post #5) such as the tone of our voice, are also important. An authentic reflection of our efforts to consciously listen for and understand the feelings, needs and interests of the person we are communicating with can only be communicated with a sincere tone. Further, it’s always better to ask if we have accurately understood, rather than claim that we have understood.

It is important to distinguish sympathy from empathy. Sympathy involves emphasizing our own emotional experience in response to the emotional experience of the person we are communicating with. Empathy on the other hand, involves a focus on care and attention to the other’s distinct individual experience. Having sympathy involves showing concern, perhaps feeling sorry for the plight of a person; whilst empathy is a much more significant affective response of care and consideration for another person’s emotional experience that facilitates and supports interpersonal connection and therefore effective communication. Importantly, as the young parents experienced in the anecdote above, the reception of adequate empathy will be evident in communications when a release of tension is sensed.

As we noted in post #15, some people are just naturally better communicators than others. Some people are inherently and instinctively able to acknowledge the people they are communicating with throughout their communications. But it doesn’t matter if we aren’t a ‘natural’ at acknowledgements. We can change that by learning to employ the skills and strategies discussed in this post. Again, these challenging times of lockdown demand that we harness our dispute resolution agency in this way.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #17: Effective communication strategies in lockdown – reframing.

References

Joseph P Folger and Robert A Baruch Bush, ‘Transformative Mediation and Third‐Party Intervention: Ten Hallmarks of a Transformative Approach to Practice’ (1996) 13(4) Mediation Quarterly 263.

Daniel L Shapiro, ‘Negotiating Emotions’ (2002) 20 Conflict Resolution Quarterly 67.

Roger Fisher and Daniel L Shapiro, Beyond Reason: Using Emotions As You Negotiate (Penguin Random House, 2005).

Michal Alberstein, ‘Forms of Mediation and Law: Cultures of Dispute Resolution’ (2006) 22 Ohio State Journal on Dispute Resolution 321.

Roger Fisher, William Ury and Bruce Patton, ‘Getting To Yes: Negotiating Agreement Without Giving In (Penguin, 2011).

Kathy Douglas and Clare Coburn, ‘Attitude and Response to Emotion in Dispute Resolution: The Experience of Mediators’ (2014) 16 Flinders Law Journal 111.

Acknowledgements:

Acknowledgement image 1: Alamy

Acknowledgement image 2: RAFREYES

Acknowledging emotions image 1: Developing Minds

Fruit and vegetables image: American Heart Association

Acknowledging emotions image 2: Retail Doctor

Empathy image: Charity Village

We have touched on many useful communication approaches in the sequence of recent posts on learning from the art of mediation for the prevention, management and resolution of disputes in lockdown. Nationally accredited mediators are experts in the practice of the mediation process. They are also required to be experts in communication (their own approaches to communication) and in facilitating the communication of others.

This next sequence of posts continues our learning from the theory and practice of mediation – with an emphasis on specific skills for effective communication. We are focussing on five key skills denoted by the acronym LARSQ. LARSQ stands for listening, acknowledging, reframing, summarising and questioning. The LARSQ approach to understanding and enacting effective communication is a common feature of mediation training. If we can train ourselves in lockdown to use LARSQ techniques regularly in our everyday communications, we will be better able to prevent, manage and resolve disputes.

Effective listening

In a fairy-tale world we would listen to each other carefully and effectively all the time. We would hear factual and content-related messages accurately and we would hear and engage with the messages ‘between the lines’ – those messages relating to emotions, feelings, concerns, interests and underlying needs, hopes and priorities. In such a world we wouldn’t need mediation because mediators would not be required to remind people to listen to each other to achieve proper understanding and acknowledgment.

Lockdown is not a fairy-tale world and we are all waiting to be relieved of its restrictions. In lockdown we are communicating with each other in the context of difficult circumstances – often facing emotional, intellectual and financial challenges. We don’t have a mediator with us everyday to promote effective listening, so we need to harness our dispute resolution agency (see post #2) and all the things we can learn from the art of mediation, to approach our communications with others in lockdown intentionally and in an informed way – so that they are constructive, productive and effective.

A good mediator will spend most of their time listening to the parties. In lockdown communications we need to invest time in carefully listening to each other. Effective listening involves more than simply hearing spoken words. It involves paying attention to, and properly understanding, the various meanings of messages by engaging attentively and being in the moment of communication. This involves: grasping facts and information analytically and picking up on the emotional content, broad narrative patterns and the themes the other person is conveying.

Causes of ineffective listening

Listening may prove to be ineffective due to the following factors relating to the speaker, the listener and the environment of communication:

• Causes of ineffective listening relating to the speaker include — inaudibility, annoying mannerisms, irritating tone, inappropriate pace of delivery, personal presentation, contentious content.
• Causes of ineffective listening relating to the listener include — discomfort, fatigue, focused on responding rather than listening, ignorance of subject-matter, psychological deafness, emotional involvement, inability to absorb, judgmental attitude, device distraction.
• Causes of ineffective listening relating to environmental factors include — external noise, bad lighting, poor acoustics, uncomfortable seating, lack of temperature control, outsider interruptions.

We can contribute to achieving effective listening by avoiding as many of these causes of ineffective listening as possible.

Listening effectively

Listening effectively is hard work. It is not a passive exercise. This is why the term ‘active listening’ is commonly used to describe effective listeners. Active listeners are physically attentive, concentrate on and encourage the other speaker, display an attitude of interest and concern, are non-judgmental, are not be preoccupied with responding to or questioning the other speaker, and are not distracted by ‘non-relevant’ matters.

A Master Listener concentrates not only on spoken words and sentences but on the speaker’s patterns of thought, organisation of ideas and the express and implicit themes in their communication. This requires considerable effort. Paying attention is an important principle of listening effectively. Active listening is critical for the activation of the other elements of LARSQ – such as being able to acknowledge emotions and feelings properly, and being able to summarise, reframe and ask questions appropriately.

Elements of active listening

Active listening can be broken down into three key elements – attending skills, following skills and reflecting skills:

1. Attending skills include: being present in the moment with the person you are communicating with, both physically and psychologically, making them feel important and engaging their trust by using physical attention, displays of interest, appropriate body movements, and encouraging noises (for example, ‘I see …’, ‘Uhuh …’, ‘Yes …’, ‘Oh really?’).

Gerard Egan (2014, 134) refers to the macro-skills of listening in terms of the acronym SOLER:

• Squarely face the person to show involvement.
• Adopt an Open posture, literally and metaphorically.
• Lean towards the person at times.
• Maintain Eye contact most of the time (if culturally appropriate).
• Relax, be natural in these behaviours.

2. Following skills include: indicating that you are following the speaker by providing cues, not interrupting, asking clarifying questions, taking notes, summarising and refraining from being judgemental or giving advice.
3. Reflecting skills involve: giving feedback to the speaker about your understanding of their message; identifying and acknowledging facts, feelings and interests; summarising accurately facts, feelings and interests; asking empathic questions. Friends and colleagues of the ADR Research Network – Mieke Brandon and Leigh Robertson (2007, 151–2) – suggest the following verbal cues as ways to initiate reflecting skills:

• ‘You sound/feel as though …’
• ‘You’re saying you believe …’
• ‘What you are saying is …’
• ‘Your point/perspective is …’
• ‘It sounds like …’
• ‘It seems …’
• ‘From where you stand …’
• ‘The main concern for you is …’

Engaging with body language (see posts # 5) is also an important element in active listening. Non-verbal communication can confirm a verbal message, contradict it or scramble it. In our lockdown communications we should aim to identify, clarify and acknowledge the messages in non-verbal behaviours. Much will depend on context.

Detracting from effective listening

We are only human after all and lockdown communications can sometimes be difficult and tense, even with our best efforts. There are many diverse natural impulses which might detract from our achieving effective listening. Here is a sample:

• Focusing on facts and information and ignoring feeling and emotions.
• Asking too many questions, in particular closed, leading or cross-examining questions.
• Moralising.
• Falling into reassurance mode.
• Falling into an advisory mode.
• Judging the other person.
• Lapsing into clichés.
• Slipping into sympathy (as opposed to empathy – see post #16), hooking into the other person’s emotions, values or judgments.
• Engaging in self-exposure.
• Interrupting or finishing other people’s sentences.

Difficult communication situations

The discussion above is premised on the assumption that communications are occurring when people are together – face-to-face. Communication may prove to be even more of a challenge in non-face-to-face environments. For example, on the phone – if we are just using audio – we are entirely dependent on verbal and vocal communication and are unaware of the speaker’s visuals and body language. In these situations we need to make even more of an effort to achieve effective communication.

Some people are just naturally better communicators than others. Some people are inherently and instinctively active and effective listeners. But it doesn’t matter if we aren’t a ‘natural’ at effective listening. We can change that by independently learning to employ the skills and strategies discussed in this post. This is what our dispute resolution agency demands of us in these challenging times of lockdown.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #16: Effective communication strategies in lockdown – acknowledging.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation: Skills and Techniques (LexisNexis, 2020) Chapter 6 (paras 6.40-6.46) with the authors’ permission. Many thanks Laurence and Nadja!

See also: Mieke Brandon and Leigh Robertson, Conflict and Dispute Resolution: A Guide for Practice (Oxford University Press, 2007).

Gerard Egan, The Skilled Helper: A Problem-management and Opportunity-development Approach to Helping (Brooks/Cole Cengage Learning, 2014)

Clouds image: Australian Mediation Association

Listening Emoji: Emoji Request

Active listening image 1: Medium Relationships

Active listening image 2: TechTello

Effective listener image: Alexis Maron

The members of the ADR Research Network have written widely on effective communication in dispute resolution contexts. See for example:

Pauline Collins, Victor Igreja, Patrick Danaher (eds), Nexus Among Place, Conflict and Communication in a Globalising World (Palgrave Macmillan, 2019).

Peter Condliffe, Conflict Management: A Practical Guide (LexisNexis, 6th ed, 2019)

Michael King et al, Non-Adversarial Justice (The Federation Press, 2nd ed, 2014)

David Spencer, Lise Barry and Lola Akin Ojelabi, Dispute Resolution in Australia: Cases, Commentary and Materials (Thomson Reuters, 4th ed, 2018)

Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 6th ed, 2020)

Bobette Wolski et al, Skills, Ethics and Values for Legal Practice (Thomson Reuters, 2nd ed, 2009)

As we’ve seen in this series of posts about learning from the art of mediation, there is so much we can discover about the prevention, management and resolution of disputes in lockdown from the theory and practice of the mediation process.

Mediator functions relating to conflict

Nationally accredited mediators in Australia have to have knowledge and skills in relation to conflict. How mediators manage conflict will vary in practice depending on their particular model of mediation. Generally speaking, however, mediators aim to:

• legitimise the common realities of conflict (see posts #12 and #13),
• normalise the presence of conflict in the dynamics between the parties,
• and validate the emotions that accompany a relationship where conflict is present.

It can be said of mediators that they should be the equivalent of medical specialists in all matters of conflict management, prevention and resolution. It is one of their key functions in the mediation process to manage the expression of conflict and the acknowledgement of emotions. These things are important because they are often pre-conditions for reaching resolution.

In lockdown we can adopt some of a mediator’s practices. For example, following the general principles above, we can acknowledge with the person we are communicating with that conflict is normal and that it doesn’t have to be a negative thing; that we can use conflict constructively to learn from each other, or to deepen the relationship, or to adopt new and better practices. We can acknowledge that conflict doesn’t feel pleasant and that it can cause angst and anxiety, but this is experienced mutually and not just by one person. And we can expressly commit to giving our best efforts to communicate effectively in order to prevent, manage or resolve a conflict.

Taking from the mediator’s toolkit we can:

• Allow ourselves to express conflict but ensure that we remain controlled about how we do that. When we don’t have a mediator to pull us up on respectful and appropriate conduct, or to remind us of the ground rules for communication, we need to enact our dispute resolution agency (see post #2) and do this for ourselves. We need to be mindful of the impact that both our verbal and body-language have on the person we are communicating with (see posts #4 and 5).
• Avoid using phrases like ‘get to the point’ or ‘let me finish’. It’s important to be aware of, and acknowledge, that a natural conversation involves ebbs and flows of interaction and speaking and a certain amount of respectful interruption. A mediator usually manages this exchange but when they’re not present, we need to intentionally do it for ourselves.
• Analyse the conflict and the dispute it may have led to (see post #13) and adopt a clear structure for discussions (using an agenda). Conflict can seem overwhelming sometimes but if we break it down into its elements and manage each of those elements individually, we are more likely to achieve some progress. Even if we don’t arrive at a complete resolution, we may achieve partial progress – a step at a time – which then can build into a positive outcome of more comprehensively managing or resolving a dispute or conflict. This is how mediators approach conflict.
• Go back to common ground, or recognize elements of partial agreement, as positive indicators of progress and an ability to cooperate and be on the same page. Common ground is a good foundation on which to build a commitment to managing or resolving the dispute or conflict. Common ground might involve, for example, matters that are already agreed on, shared values, or shared commitments (such as a love for children, or a commitment to keeping the business viable). Mediators often revert to common ground when the parties’ communications are stuck or hit an impasse.

In post #12 we noted that sometimes conflict has moved to a more complex level known as ‘high conflict’. The management of high conflict requires a significant skill level and expertise. If in lockdown we find ourselves in a situation of high conflict it is probably a good idea to bring in the help of an external third-party mediator, so that their sophisticated understanding of the nature and challenges of high conflict can allow it to be managed effectively. A list of nationally accredited mediators is available through the Mediator Standards Board.

In summary, if we are open to giving ‘permission’ for conflict’s expression, subject to our judgment as to its impact and consequences, and if communications in conflict are managed constructively, we can do some of a mediator’s work and achieve real relief of tension, better attention to achieving resolution and the possibility of an enhanced future relationship. Whilst these things are usually managed by a mediator in the mediation process, it’s necessary for us to manage them ourselves if we are to successfully prevent, manage and resolve disputes in lockdown.

From tomorrow we start a sequence of posts on specific skills for effective communication, which is so important to preventing, managing and resolving disputes. In mediation training contexts we commonly use the acronym LARSQ to denote these skills. LARSQ stands for listening, acknowledging, reframing, summarising and questioning.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #15: Effective communication strategies – listening.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) Chapter 6.

Image 1: Harvard Business Review

Conflict resolution image: Charles Stone

Toolbox image: 123RF

The prevention, management and resolution of disputes in lockdown calls not only for an understanding of dispute resolution knowledge, skills and techniques – and of the art of mediation. It also calls for an appreciation of the nature and causes of conflict and disputes, and ways in which conflict and disputes might be appropriately analysed.

In the last Lockdown Dispute Resolution 101 post we defined the terms ‘conflict’ and ‘dispute’ and explored how in dispute resolution theory, disputes are commonly understood to be a concrete manifestation of conflict. In this post we focus on developing a deeper awareness of the nature of conflict and disputes. This leads us to some key questions we can ask in lockdown in order to better respond to conflict and disputes.

Many disciplines, for example the disciplines that make up sociology, investigate, research and analyse the nature and dimensions of conflict and disputes.  However, this knowledge is not usually something we learn at school or through other public education avenues. There is a strong argument for a broader public education project on dispute resolution knowledge and skills. This is because everyone in communities – both domestic and global – at some point has to deal with conflict and disputes and their consequences.

Conflict and disputes are natural and everyday phenomena encountered in homes, communities, boardrooms, parliaments and war zones around the world.

They are played out vicariously in the news media, television, theatre and computer games. Interestingly, disputes and conflict are not absent from non-human animals’ behaviours as well.

No matter who the participants are, conflicts and disputes all involve a level of incompatibility among the parties involved, whether over objectives, resources, strategies, perceptions or other inconsistent preferences. These incompatibilities can lead to disagreement and disagreement can lead to a struggle where each side pursues its own preferences in ways not acceptable to the other. At this stage conflict has become a dispute.

Conflicts and disputes are seldom static in nature – they tend to be living organisms involving internal dynamics and fluctuating environmental pressures. The best approach is to prevent disputes from eventuating from conflict. The preferred option if a dispute does arise is, of course, to resolve it. This is not always possible, especially in lockdown. However often, if we adopt strategies from the art of mediation, we can steer a middle path – which is to manage the dispute so that although it may not be completely resolved, the parties involved can live with the situation, and continue their relationship with each other, whatever that might look like.

As we noted in post #12, while the definitive DNA of conflict is yet to be revealed there is increasing knowledge and understanding about the phenomenon. Some commentators refer to three potential aspects to a dispute – the cognitive, the emotional and the behavioural.

The cognitive component involves the perceptions, beliefs and understandings of people in dispute. People have a range of subjective perceptions that their needs are not being met because of – what they perceive to be – the incompatible and unreasonable activities of others. For example, in a post-separation parenting situation a parent waiting for their children to be returned after visiting the other parent may perceive that parent to be inconsiderate and unreasonable for not getting the children home on time.

The second dimension is the emotional – which involves the subjective feelings of people in dispute situations, including those directed at others. For example, the waiting parent is upset, frustrated or angry because every week there are delays in returning the children, or because they are now going to be late in getting the children to their sport commitment.

Both the cognitive and emotional facets of conflict might not be known to others if they are suppressed and are not articulated by the party experiencing them. This is not the case with the third dimension, the behavioural, which comprises the external and observable actions which parties in dispute take in expressing their feelings, articulating their views on the situation’s rights and wrongs and pursuing concrete actions in attempting to get their needs met. In the above example, the parent might remonstrate the recalcitrant party, seek legal advice or attempt to get the parenting arrangements changed.

The dimensions of conflict and disputes may overlap, but also they need not coincide with one another. Thus a small business owner may have negative perceptions (cognitive) about a dispute situation with a large supplier, but chooses to suppress their sense of injustice or to withdraw from the situation (behaviour) for emotional relief (emotion); alternatively they might negotiate a settlement and implement its terms (behaviour) but still regard themselves as having been unfairly treated (cognitive) or experience prolonged anger towards the supplier (emotion).

The emotional and psychological dimensions of conflict are related to the grieving process which parties experience after a significant loss. Where a person has suffered the loss of a limb, their job or their hopes for being able to purchase a house, they are likely to experience some or all of the stages or phases of grief.  These include shock, denial, anger, bargaining and sadness, but they do not occur in a neat linear fashion.

For example, after the breakdown of a relationship, a spouse might be in shock (‘I don’t know why this happened’) or denial (‘They’re just going through a phase, everything will be fine’) – and this means it is not easy to negotiate or make appropriate decisions about things like parenting arrangements or the division of matrimonial property. The grief and loss process may have to be managed before negotiations can be effective. Once a person has reached the ‘acceptance’ stage of the grieving process in relation to conflict or a dispute they are more able to create new meanings for their lives. This is when people are best able to participate authentically in dispute resolution processes such as mediation.

Parties’ beliefs and the meanings they attach to past events affect all the dimensions of conflict and disputes. Where parties are acting out in contested situations their attitudes and behaviours are predicated on beliefs about what they deserve or can reasonably expect. This can be founded on on life experiences, on what others have told them or on their professional advice.

For example, changes in welfare regulations may lessen the benefits for senior citizen Ruby. However, Ruby may have a strong sense of entitlement to benefits, based on her many years of work, on serving with distinction in the military and on paying taxes throughout her life. These together create subjective beliefs as to what is right and wrong in her situation and brings her into conflict, and potential dispute, with welfare agencies and government. Beliefs are not easy to change. This is an area where a mediator or conciliator can bring value through their third-party intervention in a dispute. They are able to acknowledge Ruby’s beliefs and understand their significance for her perceptions and behaviour – and as a result of this acknowledgement Ruby may be assisted through the dispute process.

Perceptions and subjectivity are therefore important factors in conflict and disputes.  However, conflict situations with the potential to turn into concrete disputes may not do so because they exist only in the perception of one or both parties and not in actual reality – for example two employees perceive themselves to be competitive rivals for one position whereas neither is realistically in line for it. This can be referred to as pseudo conflict in which parties’ perceptions or expectations are false or based on incorrect fears or unjustified apprehensions. False conflicts are based on stereotypes about others in terms of their personal or group attributes, for example about management or unions, or about refugees and security officials, and these can be accentuated by continuing ignorance or withholding of information, or by rumours, confirmation biases and wilful blindness.  There may be little basis to the conflict in reality but it is played out by one or more parties as if there was. With both pseudo conflict and false conflict, the sharing of correct information, the provision of an explanation, or righting a misperception or a misunderstanding can help to resolve the situation.

Key questions to ask ourselves in lockdown to analyse disputes

A deeper understanding of conflict and disputes can inform some key questions we need to ask to analyse a dispute in lockdown. Using our dispute resolution agency means we need to adopt structured and intentional approaches to dealing adequately with a dispute rather than operating merely on gut-feeling.

Here are some questions to help us to think methodically through the elements of a dispute in lockdown:

1. Who are the relevant people involved in the dispute?
2. Why are they in dispute?
3. Why have past attempts at resolving the dispute failed?
4. On a scale of 1-10 how is each party coping with the dispute (and the conflict underlying the dispute)?
5. What are the parties’ positions?
6. What are the parties’ underlying interests, needs, fears and concerns?
7. What would life look like if the dispute continues unresolved?
8. What are some possible options for resolution?
9. Which ones are realistic?
10. What ‘package’ of options could optimally satisfy each party?

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #14: Learning from the art of mediation – mediators functions relating to conflict.

Highlighting Works of some of the ADR Research Network Members

See here a sample of the works on conflict and dispute resolution in Australia – many of which are authored by current members of the ADR Research Network:

Bobette Wolski et al, Skills, Ethics and Values for Legal Practice (Thomson Reuters, 2nd ed, 2009)

David Spencer, Lise Barry and Lola Akin Ojelabi, Dispute Resolution in Australia: Cases, Commentary and Materials (Thomson Reuters, 4th ed, 2018)

Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 6th ed, 2020)

Peter Condliffe, Conflict Management: A Practical Guide (LexisNexis, 6th ed, 2019)

Michael King et al, Non-Adversarial Justice (The Federation Press, 2nd ed, 2014)

Michael Mills, Commercial Dispute Resolution: A Practitioners’ Guide to Successful ADR (Thomson Reuters, 2018)

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Australian Dispute Resolution: Law and Practice (LexisNexis, 2017) Chapter 5. See also, Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) Chapters 1 and 4.

Sociology circle image: Pinterest

Fighting gorillas image: Africa Adventure Safari

DNA image: Science Mag

Cognitive Emotional Behavioural image: Victorian State Government

Perception image: Psychology Today

Question mark image: Clipart Library