Chevalier Charles Henri-Sanson de Longval was an executioner.  He lived from 15^th February 1739 to 4^th July 1806 and during his long life (for those times) he was the royal executioner of France during the reign of King Louis XVI and later the High Executioner during the first French Republic.  He administered capital punishment in the city of Paris for more than thirty years and it is estimated that, by his own hand, he executed more than 3,000 people.  With equal zeal and dedication to duty, Henri-Sanson executed the King’s would-be assassin Robert-Francois Damiens and later, the King himself.  He saw no difficulty or conflict of loyalty in despatching both the King and the King’s enemies.  He was simply a professional executioner doing his duty.  The underlying political regime for whom Henri-Sanson did his work was of no consequence.  It was, as Professor Menkel-Meadow has observed, merely an extremely professional and functional adherence to ethics. 

In this post it is suggested that current events in the context of the world Coronavirus pandemic support the view that slavish adherence to a rules based prescriptive code of ethics or conventions does not always serve us well.  The appearance of an infectious and sometimes fatal disease which ails rich and poor alike and transcends political, social and cultural boundaries, exposes the populist myth that all problems can be resolved by reference to dichotomous worldviews and ideologies.  The solution to our present health crisis will not depend on whether we are politically progressive or conservative, left or right, religious or atheist, prosecutor or accused, public or private.  Indeed much of our present predicament is reminiscent of Menkel-Meadow’s claim that truth is “…illusive, partial, interpretable, dependent on the characteristics of the knowers as well as the known, and most importantly, complex.” (C. Menkel-Meadow The Trouble with the Adversary System in a Postmodern Multicultural World 38 Wm & Mary L Rev 5 44 (1966)).

Perhaps in recognition of this complexity, our political leaders (in Australia at least) have declared that we will approach the pandemic problem from a bipartisan perspective and have actively worked together to formulate a comprehensive response that is best calculated, according to the evidence, to bring about an effective solution that minimises harm and allows people to return to their normal lives as soon as possible.  It has been heartening to read in the popular news media joint press statements of politicians from the two major political parties jointly urging compliance with a set of protocols which have been formulated on the basis of expert medical advice.  As Western Australia Premier Mark McGowan said: “If you compare Australia to the US…We’ve had outstanding results, they’ve had awful results, and you can see that working together bears fruit.” (ABC News 3.5.20)  For once, it seems, our leaders have been able to sit around the table and address the substantive issues from a problem based perspective without descending into self-serving adversarial debate about which side of politics has the answers.  At last we have been able (on this issue at least) to cast aside the useless distractions of partisan rivalry and accord primacy of attention to the nation’s interests in preference to ideological positioning and to seeking solutions rather than to win.

Although the crisis is far from over, early indications are that the collaborative manner in which the Australian government has approached the problem appears to be paying dividends.  We appear to have reached a flattening of the curve in the rate of new infections, contained the death rate to .364 deaths per 100,000 of population and contained the overall number of deaths to less than 100 in a population of 25 million.  In consequence, we are told, the public health system and infrastructure generally is able to cope with the additional strain placed upon it by the present crisis. 

By contrast, those nations of the world that have clung to their binary and oppositional worldviews and, to the extent of any inconsistency with them, have refused to accept medical evidence appear, at least anecdotally, to have been afflicted more extensively and with greater catastrophic consequences.  In the US where President Donald Trump has actively encouraged citizens to break the law by ignoring social distancing rules and gathering in rallies to protest regional lock down laws, the nation has recorded the highest number of fatalities of any nation in the world.  The number of sick and dying has clearly exceeded the capacity of the infrastructure and health system to deal with it and the President seems more intent on prioritising matters of political expediency. 

On 30^th April 2020 the New York Times reported that the C.I.A., America’s international spy agency, is being pressured by the Trump administration to find “evidence” to support a conclusion, already reached, that the Coronavirus had its origin in a Chinese laboratory and was deliberately introduced by the Chinese government to further its political interests.  (“Trump Officials Are Said to Press Spies to Link Virus and Wuhan Labs” NYT 30.4.20).    

In Brazil, a nation of 212 million, where President Jair Bolsonaro sacked his health minister for challenging his behaviour over the Covid-19 pandemic and where the justice minister resigned in protest at the President’s anti-scientific stance, 6,000 people have died which represents a death rate of 2.830 per 100,000 of population.  Brazilian newspapers are punctuated with horror stories of its public health system, Sistema Unico de Saude, in a state of collapse and ghoulish images of gravediggers in protective suits dumping scores of Brazilian bodies into muddy graves. 

Of course it is unfair to compare bare statistical data from this crisis without also acknowledging both the tentative nature of the data itself and the host of other variables which must be brought to account in attempting to make an accurate comparison.  The nations of the world are not all equally resourced to cope with mass outbreaks of disease and, whilst COVID-19 may be indiscriminate in its attack, its effect tends to fall most heavily on the poorer nations who are leased equipped to deal with it. 

The point to be made here though is that, regardless of the fine detail, it is becoming clear that those nations which have embarked on more focused and integrative methods of resolving the crisis have enjoyed greater success in meeting the challenge, reducing the uncontrolled spread of the disease and saving lives.  Those which have maintained their insistence upon binary worldviews, adversarialism, false dichotomies and polarisations have eschewed the science and preferred a backward-looking focus of attention to what happened in the past, attribution of blame and “holding China accountable,” all of which can do nothing to address the presenting problem.

Dispute resolution practitioners and theorists will immediately recognize within current attempts to manage the coronavirus scourge, the indicators of integrative practice – the formation of a bipartisan national cabinet, the deference to scientific and medical expertise, the free exchanges of reliable and accurate information between governments and their agencies and the appearance together at press conferences of political rivals making joint statements and advising on the results of the best information available.  They will recognize too the necessary elements that go to make a co-operative integrative framework for working through the issues – the building of relationships of trust, honesty and reliance on the integrity of people involved in discussions and the exchanges of information between them, the forbearance from resort to tactics of partisan rhetoric and cynical selection of only such information that is supportive of a particular position.

At the end of the day, there is one thing of which we may be certain.  Regardless of our worldview, the presence of coronavirus will continue to be felt throughout the world until it has been eradicated by the efforts of the informed actions of the scientific community.  It is neither a war nor a battle to be won nor the product of a malevolent enemy. It cannot be legislated away or removed by adversarialism or political expediency.  As the eighteenth century English poet, Samuel Johnson once wrote:

“How small, of all that human hearts endure

That part which laws or kings can cause or cure.

Still to ourselves in every place consign’d,

Our own felicity we make or find.” 

John Woodward

This post is the first step in a paper yet to be written – a paper which has its genesis in a largely unexplored issue arising from a PhD thesis. 

Firstly, I should commence with a little background. The thesis Lawyer Approaches to Court-connected Mediation: A new case study explored the attitudes and behaviours of lawyers to the collaborative, problem-solving and constructive consensus-building models of justice which are the stuff of facilitative mediation theory.  These models call for different skills from those which traditionally populated the menu of offerings in law school curricula and different from the training that many practicing lawyers would have received in their preparation for entry into the legal profession. 

A question which arose early in the study is whether we are able, simply by introducing a new Civil Procedure Act 2005 (NSW) and its equivalent in other States, to bring about the sort of change required to effect more constructive ways of managing dispute resolution?  This question is particularly relevant where the dispute is subject to litigation or where litigation is threatened and lawyers are involved.  Issues of general practice, customs, habit and culture emerge. Happily, we can now look back with some satisfaction at the progress in legal education that we have made even over the last five years when there has been more emphasis on educating young lawyers in mediation and negotiation, and the Priestly 11 list of subjects for study by law students was amended in 2016 to include mediation as a component of civil dispute resolution.  But it was not always thus and in 2015, the intention with this study was to undertake an empirical project that involved speaking to lawyers and mediators to establish how they think that lawyers are coping with the new demands of practicing law and map the expansion of ideas about justice in NSW from adversarial zealot to include broader notions of justice such as mediation.

Armed with Professor Julie Macfarlane’s “three core elements of legal professional identity” as a framework against which to measure lawyer behaviours, the study proceeded with all the usual problems which beset PhD candidates but otherwise very much as anticipated and with results that were not greatly surprising (even allowing for confirmation bias).  Essentially the study found that lawyers generally are willing participants in mediation practice but that their approaches to mediation are circumscribed by poor understanding of mediation theory which results in unnecessarily competitive and adversarial behaviours in the mediation setting. 

What was surprising and was something that did emerge quite forcefully from the data was the fact that the quality of lawyers’ engagement with court-connected mediation throughout NSW is far from homogenous and any assumption which may have been entertained about that issue was clearly dispelled by the evidence.  The purpose of the present paper will be to revisit the data with a view to establishing any patterns of behaviour or other phenomena which would explain the differential in attitudes and perhaps to borrow from the literature of other disciplines such as anthropology (Kevin Avruch) and psychology (Nemeth and others) in an effort to understand whether any patterns which may be found to exist might be based on geographic or other socio-psychological phenomena. 

A good starting point may be to examine the cross-disciplinary literature for evidence of any studies that would explain the divergence of attitudes and behaviours exhibited by lawyers in their responses to the reality of court-connected mediation.  Interestingly, the two works initially consulted as a starting point in the enquiry, Professor Nemeth’s ‘No: The Power of Disagreement in a World that wants to get along’ (Atlantic Books, 2019),and Kevin Avruch’s ‘Context and Pretext in Conflict Resolution’ (Paradigm 2013) each commenced their work with the story of an aviation disaster where, in the case of each story, massive damage and loss of life resulted from poor communication between well experienced and professional pilots on the flight deck. In one case the pilots became so pre-occupied with resolving a malfunction with the landing gear that they failed to notice low fuel levels and, although they commented about it, they failed to address the problem and the aircraft crashed, killing ten people and injuring another twenty-three.  In the other narrative an airliner crashed into the Potomac River shortly after taking off from Washington National Airport in circumstances where the captain repeatedly ignored warnings by the co-pilot that some of the instruments didn’t “seem right.”  In both cases, the American National Transportation Safety Board (NTSB) concluded that the accident occurred because of pilot error and the prevailing “authoritarian cockpit culture” by which the authority of the captain dominated decision making in the cockpit.   In both cases it seems that cultural factors played a significant role in the events which unfolded.  Professor Nemeth opines that, in the case of the problem landing gear, the consensus of silence and the culture of deference to the authority of the captain prevented the flight crew from focusing attention to the urgent problem that the aircraft was almost out of fuel.  Similarly, in the Washington crash, Avruch concludes that the tragic outcome resulted from the flight crew’s catastrophic failure to overcome the authoritarian cockpit culture and alert the captain to the presence of the faulty de-icing problem.  The NTSB report into the crash noted that its recommendations to break down the cockpit authority culture had also been taken up in other multi-actor, high-risk settings such as hospital operating theatres where the authority of the surgeon was akin to that of the “captain” of the operating team. 

These were both dramatic examples of where culture mattered and had a direct impact on the lives of aircraft passengers and crew.  Because of the obvious implications for the future safety of aircraft travel, real and tangible steps were taken to change cockpit culture so that the cultural problem could be resolved and no longer would the traditional practice of deference to rank prevail among the flight crew in the cockpit.   In the present research it is argued that, whilst undoubtedly less dramatic, culture also matters in court-connected mediation and if the quality of mediation services is being compromised by poor attitudes and resort to adversarial behaviours, then we need to take further action to change culture so that the identification and search for parties’ interests will at last displace the lingering attachment to positional argument and an outcome consistent with what the court would order. 

With the focus of culture now firmly under the microscope the research data takes on a new dimension.  It becomes clear that not all lawyers are looking at dispute resolution options through the same lens or, as one research respondent remarked: “Lawyers are not lawyers.”  The task ahead is to ascertain whether there are regional or other cultural factors which are acting as inhibitors to the success of court-connected mediations and to consider how those issues might be addressed. Hopefully, further progress will be reported soon.

The reality of the stressful nature of life in lockdown as a result of COVID-19 is that the quality of our communications and negotiations is under pressure. We need to harness our dispute resolution agency, and employ positive strategies and methods from the art of mediation, in order to ensure we do our best to prevent, manage and resolve disputes. We also need to practice self-management, for example by building our resilience skills, so that we protect our psychological well-being and ensure we have the right attitudes and energies for lockdown living.

In this last post for the Lockdown Dispute Resolution #101 series we consider a second aspect of self-management – reflective practice. Mediators regularly engage in reflective practice. For example, after Associate Professor Libby Taylor and I have conducted a co-mediation in the Bond Family Dispute Resolution Clinic, we always debrief together and reflect on what went well and what we could have done differently or better. We ensure our feedback to each other is honest but constructive and it’s always a very rich learning experience.

The self-management skill of reflective practice can help us to manage and cope with stress as we endure the impact of COVID-19.  It can also enhance our capacity to communicate and negotiate effectively.

Reflective practice

Reflective practice is a positive cognitive process that we can all use to enhance our capacity for self-management and our interactions with others in lockdown. Reflective practice helps us to strategically and thoughtfully identify gaps between our existing knowledge, skills and values, and those we want to gain or develop. Reflective practice can also help to maintain our psychological well-being because it supports emotional intelligence which in turn supports balance, happiness and self-regulated behaviour. Once you know how to do reflective practice it is hard to unlearn – it’s a valuable skill that has application in both our personal and professional lives.

Donald Schön

There is a substantial body of scholarly literature and research on reflective practice. Chris Argyris and Donald Schön published the first scholarly work in the area of reflective practice in 1978. Schön was one of the leading thinkers in reflective practice until his untimely death in 1997 at the age of 66.

After considering a range of theorists’ work on reflective practice, Russell Rogers devised the following definition. Reflective practice is:

a cognitive and affective process that (1) requires active engagement on the part of the individual; (2) is triggered by an unusual or perplexing situation or experience; (3) involves examining one’s responses, beliefs, and premises in light of the situation at hand; and (4) results in integration of the new understanding of one’s experience.

The attributes of a reflective practitioner are all the sorts of attributes we need to be effective communicators and negotiators in lockdown. For example, reflective practitioners learn from experience; identify personal and professional strengths; identify areas for improvement; identify their needs; develop goals; implement strategies to achieve goals; acquire new knowledge and skills more effectively and efficiently; better understand their own beliefs, attitudes and values; are self-motivated, self-directed, and more confident; cope well with uncertainty and anxiety; exercise sound judgment; are able to accept and constructively process critical feedback; and are committed to life-long learning (Davies, 2012).

Putting theory into practice

The theory of reflective practice certainly sounds positive. There are many ways to put this theory into practice. One reflective practice model that is easy to enact has been developed by Graham Gibbs. This model involves 6 steps:

• First, identify an experience or situation that requires reflection. For example, my difficult Zoom communication with a work colleague today.
• Second, describe that experience or situation by asking ‘What happened?’ This is not an analysis of the situation – merely a description. For example, my colleague was agitated that a decision had been made without consulting her and expressed this in an aggressive way towards me. I responded defensively.
• Third, explore your reactions and feelings in relation to that situation or experience by asking ‘How did I feel about the situation?’ For example, I felt really angry that she accused me of poor collegiality without asking for more information about the situation. I felt upset that she had spoken to me so aggressively. I felt I had to let her know that and defend myself.
• Fourth, analyse and evaluate the situation or experience by asking questions like: ‘What could I have done differently?’ ‘Was the experience similar or different to previous experiences?’ For example, I could have remained calmer and used empathy to understand where my colleague was coming from. I could have asked more clarifying questions rather than responding defensively. I could have used LARSQ more effectively to lift the quality of the interaction. I could have acknowledged the colleague’s upset and suggested we pursue the conversation at another time.
• Fifth, make some conclusions about the situation or experience, starting with general conclusions and moving to conclusions that are more specific to you and your own personal situation or way of working. For example, I want to avoid this sort of communication exchange with any colleagues in the future. With this particular colleague I want to reach out to apologise for my defensive response, revisit what happened and ensure a better communication process that will settle the issues.
• Sixth, use all the steps above to create a personal action plan for yourself, using questions like: ‘How will you manage a similar experience next time?’ What will you do differently, what will you do the same?’ ‘What have you learned from the situation?’ ‘What steps can you take to make the most of this learning experience?’ For example, I’ll talk with my mentor about what happened and seek some further feedback from them. I’ll work to fix the relationship with this colleague. I’ll aim to set ground-rules for communications when a colleague appears to be approaching the situation aggressively. 

Reflective practice is a skill that is best learned by doing. To become a competent reflective practitioner, we need an established structure and framework, such as Gibbs’ model above, to guide our reflections. We also need to commit to that framework and allocate dedicated time in our busy schedules to ensure that we actually put reflection into practice.

Being a reflective practitioner has lots of positive flow-on impacts for coping with the challenging circumstances of COVID-19 and life in lockdown. Reflective practice can help us to be more effective as communicators and negotiators, and ensure that we do our best to prevent, manage and resolve disputes.

Thank you: This series of posts was only possible through the collegial generosity of ADR Research Network members. Thank you to Professors Laurence Boulle and Nadja Alexander for very kindly allowing me to use and adapt Chapter 6 of their Mediation Skills and Techniques (Lexis Nexis, 3^rd ed, 2020) for many of the posts. This book is a must-have for any dispute resolution practitioner, and anyone interested in extending their dispute prevention, management and resolution skills. Thank you also to my co-authors James Duffy and Dr Anna Huggins for writing Lawyering and Positive Professional Identities (LexisNexis, 2^nd ed, 2020) with me. Elements of this work were used for the development of a number of posts. Thank you also to Professor Jonathan Crowe for allowing me to use aspects of our forthcoming work Mediation Ethics: From Theory to Practice (Edward Elgar, 2020).

Finally, a big thank you to the ADR Research Network members who are a wonderful, collegial and scholarly community of practice – you are all an inspiration. Thank you especially to Dr John Woodward our President for 2020 (who generously let me encroach into his Blog Editor month of May); and to Nussen Ainsworth – convenor of the ADR Research Network Blog for 2020.

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) Chapter 4.

Lockdown image: Inside Sources

Donald Schön: infed

Gibbs Reflective Practice Model: Cambridge International Education

Theory into practice: Pinterest

See also:

Chris Argyris and Donald Schön, Organization Learning: A Theory of Action Perspective (Addison Wesley, 1978).

Samantha Davies, ‘Embracing Reflective Practice’ (2012) 23 Education for Primary Care 9.

Graham Gibbs, Learning by Doing: A Guide to Teaching and Learning Methods (Oxford Centre for Staff and Learning Development, 1988).

Russell Rogers, ‘Reflection in Higher Education: A Concept Analysis’ (2001) 26(1) Innovative Higher Education 37.

Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic Books, 1983).

Donald A Schön, Educating the Reflective Practitioner (Jossey-Bass, 1987).

There is no doubt that living in lockdown can be stressful. The BBC has reported on a recent UK Office for National Statistics survey which suggests that people in lockdown are more worried about their mental wellbeing than their general health. Just under two-thirds of 16- to 69-year-olds surveyed were most affected by boredom, stress and anxiety and the inability to make plans. If simply experiencing life in lockdown is stressful, it is logical to infer that lockdown communications and negotiations are impacted by this stress, and that our ability to prevent, manage or resolve disputes in our homes and virtual workplaces may well be compromised.

In these last two posts for the Lockdown Dispute Resolution #101 series we consider two aspects of self-management that can help us to manage and cope with stress as we endure the impact of COVID-19.  In this post we consider the nature of stress and some basic resilience skills that we can adopt to improve our stress management capacity. In the final post for the series we consider reflective practice as a self-management tool that can help us to cope with the dynamics and pressures of lockdown. Self-management strategies are critical to effective communication and negotiation in lockdown.

Understanding stress

Stress is something that we all experience as we navigate our daily lives. Indeed, it is an inevitable part of life to experience strains, burdens, difficulties and unexpected change.

There are some important things to understand about stress:

1. Not all stress is the same. There are high levels of stress, low levels, and mid-range levels of stress. Stress varies on a continuum according to factors like duration and intensity.
2. Different people may experience different levels of stress in response to the same stressor. A situation becomes more or less stressful depending on an individual person’s cognitive appraisal of a situation and their relative ability to deal with that situation.
3. Not all stress is harmful. Within the range of levels of stress, moderate stress can actually work out for many people to be quite a positive thing. Positive stress is known as eustress, while negative stress is known as distress.
4. Experiencing too much stress is referred to as ‘hyperstress’. ‘Hypostress’ on the other hand concerns experiencing too little stress. In lockdown we can experience both hyperstress – feeling overwhelmed by too many new and different challenges and clashing priorities, as well as hypostress – feeling bored, unchallenged or unstimulated.
5. A moderate level of stress can be helpful because it can help build our capacity to deal with challenges; and it can prompt us to think creatively and resourcefully when dealing with difficulties.
6. Stress can impact us and manifest in a range of ways. For example, we can experience headaches; muscle tension or pain; chest pain; fatigue; stomach upset; sleep problems; anxiety; restlessness; lack of motivation or focus; irritability or anger; or sadness or depression.
7. If high levels of stress are experienced over a prolonged period of time this is known as chronic stress. Chronic stress can have a damaging impact on our physical and mental health, and can even lead to serious health problems, such as depression and heart disease.
8. Importantly, stress can be managed. We need to intentionally manage stress if we are to prevent it from affecting our health in a negative way.
9. We all need to keep an eye on our stress levels in lockdown, and if we sense that they are consistently too high, then we need to proactively take positive steps to address them.
10. It’s also important in lockdown for us to look out for other people and to check-in with them if we have concerns.

Resilience

Intentionally managing our stress in lockdown involves quite practical, common sense approaches and strategies around building our resilience. Resilience is a capacity to cope well under pressure, as well as an ability to respond and endure in situations of adversity. In other words, resilience skills help us to manage and prevent stress.

Watson and Field refer to research that identifies a range of positive characteristics of resilient people (2011, 399). For example, resilient people are socially competent, flexible, able to empathise, have good communication skills and a sense of humour. They are good at problem solving. They have an ability to think abstractly, reflectively and flexibly. They are autonomous, having a strong sense of independence and internal locus of control. Resilient people are purposeful and positive about the future. They are creative, have an ability to gain positive attention, are optimistic even in the midst of adversity, and have a sense of what a meaningful life means for them. Resilient people nurture relationships and take advantage of support. And they have a positive self-concept, self-awareness and self-understanding.

Building resilience

The following ideas for building resilience, and ensuring we manage and prevent stress levels from becoming too high, might seem simple or obvious. However, they are tried and tested and found in lots of well-being work. Most of us already know that these approaches are positive, but sometimes we need to be reminded to put them into action.

Being active

There are many benefits to being physically active. Not only is exercise a critical part of a healthy lifestyle, physical activity also boosts endorphin levels which make us feel good. We don’t have to become a marathon runner overnight, or take up activities we don’t enjoy. Even short bursts of activity can help us to feel better, concentrate better and become more productive. We just need to do some physical exercise every day, keep it simple and enjoyable and choose something that works best for us.

Eating well

It is a given that nutrition is a critical component of well-being. Eating well (so that blood sugar levels are in order) and keeping hydrated, are more important to managing stress levels than might be imagined. We need lots of fresh fruit and vegies, cereals, grains, nuts and proteins, and not a lot of junk food, alcohol and sugary foods in large quantities.

Prioritising relationships

Relationships are important to well-being. We know this from a lot of the positive psychology research which confirms that relationships, and being connected positively to others such as family and friends, are critical for most people to thrive as human beings.

Keeping things in perspective

Managing stress requires us to keep things in perspective. This means allowing things sometimes to be ‘good enough’ rather than ‘perfect’. Keeping things in perspective also involves prioritising the different elements of life and focusing energy on the most important elements. It means acknowledging that mistakes, failure and disappointment are all a part of a life lived well, and often present very valuable learning opportunities. It means aiming for a balanced life and integrating life, work and play. And it means having reasonable expectations of ourselves and others, and knowing, and being able to capitalise on, our own personal strengths.

Asking for help 

There are lots of different support systems in society and in our communities and with friends and families that we can identify. What’s important is being able to reach out for support when we need it and asking for help. Sometimes a conversation with a GP is helpful.

Rest and sleep

Sleeping well daily is critical to well-being and stress management. Individual people are different in terms of how much sleep they need to refresh, and sleep needs also differ depending on our age. The National Sleep Foundation has done extensive research into sleep. They suggest that an adult who is 18 years or older needs between 7–9 hours of sleep a day. Being stressed can cause difficulties in getting to sleep. Having a sleep routine can help. For example, planning the end of the day to include wind down time — preferably for 30 minutes before going to sleep — can be helpful.

Relaxing

Learning to relax is important to managing stress, building resilience and well-being. Yoga or Tai Chi are great ways to relax. Other strategies for relaxing include for example: mindfulness meditation, breathing exercises, exercising, and listening to music. The main thing is to work out what works for you. It could be a combination of things.

Positive self-talk

Positive self-talk can help to avoid negative thinking induced by stress.  Using positive self-talk can help build confidence and affirm a sense of having a capacity to cope. It can also help with reaching goals. For example, simply saying to ourselves: ‘I can do this!’.

Coping with disappointment and setbacks

A particular subset of resilience skills relate to getting over disappointments and setbacks in life. Setbacks are challenging but such experiences can be used constructively. We need to avoid blaming or being too hard on ourselves. We are only human and setbacks are a part of life. If we don’t ever feel disappointed, how will we understand what it is to feel truly happy and elated?

COVID-19 and life in lockdown are challenging. It’s a time when we need to be the most effective communicators and negotiators, and ensure that we prevent, manage and resolve disputes. Managing stress through enacting some basic resilience-building strategies is a simple proactive intentional way that we can harness our dispute resolution agency.

Final Blog: Lockdown Dispute Resolution 101 #25: Self-management strategies in lockdown: Reflective practice

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) Chapter 9.

See also, Penelope Watson and Rachael Field, ‘Promoting Student Wellbeing and Resilience at Law School’ in Sally Kift et al (eds), Excellence and Innovation in Legal Education (LexisNexis, 2011) 389.

Stress image 1: WebMD

Stress image 2: Medium

Resilience image 1: Medium

Resilience image 2: Positive Psychology

Our efforts in lockdown to prevent, manage and resolve disputes can be supported by engaging with some psychology basics. Not only do we need to recognise the different biases we bring to lockdown negotiations and communications, there is also a range of other insights that we can learn from psychology. We don’t have a mediator at home and in virtual workplaces to help us, so we need to draw on our dispute resolution agency and harness this knowledge ourselves.

As we know, psychology is the scientific discipline that studies the human mind, human behaviour and the mental processes that inform human behaviour. Psychology as a profession is dedicated to helping people solve practical problems with human fundamentals – such as how we think and feel. A common misconception of psychology is that it is only concerned with mental health issues, such as depression, anxiety and stress. These issues fall under the heading of clinical psychology, which is a particular psychological specialisation. However, other aspects of psychological knowledge can help us in lockdown communications and dispute resolution practice to understand why people behave, think and feel in certain ways. It is therefore clear that our efforts to make communication and dispute resolution in lockdown more effective can be enhanced by connecting with the evidenced-based knowledge base of psychology.

In this post we specifically look at emotional intelligence, emotional flooding and emotional transference and countertransference. If we tap into some of these ‘psychology basics’ we will be better able to understand conflict, disputes and our responses to them in lockdown.

Emotional intelligence

Simply put, emotional intelligence is the intelligent use of emotions. This requires an awareness of our emotions and an ability to use that awareness to beneficially aid our thinking and behaviour. Emotional intelligence informs our capacity to perceive emotions, assimilate emotion-related feelings, understand the information of those emotions, and manage them.

Emotional intelligence contains four competencies. First, the ability to perceive emotion accurately. Second, the ability to use emotion to facilitate thought. Third, the ability to understand emotion. Fourth, the ability to manage emotion.

Emotional intelligence is strongly related to intrapersonal intelligence and interpersonal intelligence. Emotional intelligence from an intrapersonal perspective considers an individual’s emotional self-awareness and their ability to regulate their own emotions. Emotional intelligence from an interpersonal perspective involves a person’s ability to accurately detect the emotions of another person and to manage their emotional responses.

Harnessing our emotional intelligence is important for communicating and negotiating in lockdown if we are to engage as well as we can with family, friends and work colleagues.

Emotional contagion

Emotional contagion is a psychological phenomenon that refers to the ‘catchability’ or contagiousness of emotions. For example, if Rachael is in a particularly happy mood, this mood may end up rubbing off on Anna and Anna may subsequently begin to feel happier. Anna might then ‘infect’ others with her happiness. Emotional contagion ‘refers to the tendency to catch (experience/express) another person’s emotions’ (Kimura, Daibo and Yogo, 2008, 27).

One formal definition of emotional contagion (sometimes referred to as primitive emotional contagion’ or ‘implicit emotional contagion’) describes the construct as ‘the tendency to automatically mimic and synchronize facial expressions, vocalizations, postures, and movements with those of another person and, consequently, to converge emotionally’ (Hatfield, Cacioppo and Rapson, 1994, 5).

Emotional contagion has also been defined more broadly to mean ‘a process in which a person or group influences the emotions or behavior of another person or group through the conscious or unconscious induction of emotion states and behavioral attitudes’ (Schoenewolf, 1990, 49).

An awareness of emotional contagion can help us to understand the feelings of others and therefore see a conflict in a more positive light – and take actions that might lead to positive outcomes. This awareness can also help us to avoid catching the emotions of others, which otherwise might lead to feelings of helplessness, or hostility towards the other party.

Emotional flooding

Emotional flooding occurs when an individual becomes swamped by emotions. Biologically, intense emotional experience can affect the way the brain works. Information exchange to the neo-cortex is inhibited, with the result that people find it difficult to think in cognitively complex ways and to function properly. This might sound like a really extreme and rare occurrence, but it actually happens to people surprisingly frequently.

Have you ever found that in a heated argument, or when you are faced with a stressful situation, that your brain does not seem to function quite as well as you would like? Your muscles feel a bit tense, your heart rate goes up, your breathing becomes a bit more rapid, or your voice becomes unsteady? Maybe you feel like bursting into tears? These are all signs that emotional flooding may be occurring.

Knowing about emotional flooding is important for us in lockdown communications and negotiations. It is not uncommon to feel distressed if we are experiencing conflict, and this makes us particularly susceptible to emotional flooding. Emotional flooding is most likely to occur when we experience negative emotion that has been triggered by an external event, or even our own negative thoughts. It can be counterproductive to engaging in higher order thinking. That said, emotional flooding can occur to varying degrees in different people. For example, it might manifest itself in the person we are communicating with as their appearing just a bit spaced out, or mentally stuck.

Literature suggests that it may take at least 20 minutes for someone to recover from an experience of emotional flooding. Obviously, there are some situations where we can’t afford to take a 20-minute time out. Ideally then, we should try to avoid emotional flooding. Understanding our own triggers for emotional flooding is a vital step in its prevention. Reframing external problems or threats as challenges to be overcome, and correcting or challenging negative internal dialogue, are two strategies for combating emotional flooding. Positive self-talk is really helpful in this regard!

Transference and countertransference

The concepts of transference and countertransference have their origin in the work of Sigmund Freud and his focus on psychoanalysis/psychodynamic theory. Freud was a famous psychologist for many reasons, although when most people think about Freud, they often think about beards, couches, and unconscious and sexually repressed thoughts and behaviour. These images are all accurate to a certain degree. As it turns out, one of the reasons why Freud used ‘the couch’ when treating patients related to the notion of countertransference: ‘Freud frankly admitted that he used this arrangement inherited from the days of hypnosis, because he did not like “to be stared at”; thus, it served him as a protection in the transferencecountertransference duel’ (Benedek, 1953, 202).

Talking about transference and countertransference outside the context of psychotherapy arguably dilutes the precise clinical meaning of these terms. Given this caveat, transference refers to a process in which we might project on to the person we are communicating with certain traits – which might not be based in reality – but which stem from our previous associations with that person. Countertransference involves a reaction to their expressed emotions and point of view from a perspective of our own unresolved personal issues. Just like emotional contagion and emotional flooding, transference and countertransference are regularly occurring phenomena. They don’t necessarily lead to problems, but it is important to appreciate when transference and countertransference are at play.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #24: Effective communication strategies in lockdown – self-management: Part 1. This is followed by Lockdown Dispute Resolution 101 #25: Effective communication strategies in lockdown – self-management: Part 2. These are the 2 final posts in the Lockdown Dispute Resolution 101 series.

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) paras 10.27-10.42.

Psychology image 1: American Psychological Association

Emotional intelligence image 1: Cognitive Institute

Emotional contagion image 1: Psychology Today

Emotional flooding image 1: Highly Sensitive Refuge

Countertransference image 1: Moosmosis

See also:

Therese Benedek, ‘Dynamics of the Countertransference’ (1953) 17 BULL Menninger Clinic 201.

Paul Olsen (ed), Emotional Flooding (Human Sciences Press, 1976).

Gerald Schoenewolf, ‘Emotional Contagion: Behavioral Induction in Individuals and Groups’ (1990) 15(1) Modern Psychoanalysis 49.

Elaine Hatfield, John T Cacioppo and Richard L Rapson, Emotional Contagion (Cambridge University Press, 1994).

Tricia Jones and Andrea Bodtker, ‘Mediating with Heart in Mind: Addressing Emotion in Mediation Practice’ (2001) 17(3) Negotiation Journal 217.

Lezlie Burwell-Pender and Kate H Halinski, ‘Enhanced Awareness of Countertransference’ (2008) 36(2) Journal of Professional Counseling: Practice, Theory, and Research 38.

Masanori Kimura, Ikuo Daibo and Masao Yogo, ‘The Study of Emotional Contagion from the Perspective of Interpersonal Relationships’ (2008) 36 Social Behavior and Personality 27.

Nadja Alexander, Jill Howieson and Kenneth Fox, Negotiation: Strategy Style Skills (LexisNexis, 3rd ed, 2015).

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