In addition to my previous mediation training required by Texas Civil Practice and Remedies Code Sections 154.052, 154.053 and 155.003, I have taken the following trainings: American Academy of Matrimonial Lawyers Advanced Mediation Training, November 2015; Harvard Law School Advanced Mediation Training, June 2015 and Advanced Negotiation Training at Harvard Law School, June 2010.
Serious mediation training and substantive expertise are critical, as are patience and keen analytical skill. However, according to a survey by Northwestern University Law School professor Stephen Goldberg, veteran mediators believe that establishing rapport and trust is more important to effective mediation than employing specific mediation techniques and tactics. Goldberg also learned that to gain a party’s trust and confidence, rapport must be genuine: “You can’t fake it.” Before people are willing to settle, they must feel listened to and that their interests are truly understood. Only then can a mediator reframe their interests and goals and provide creative options and solutions.
An effective mediator needs to obtain pre-mediation information about each party, such as their education, occupations, hobbies and interests. Does a party enjoy reading, movies, fishing, hunting, hiking, walking, running, water sports, and winter sports? Each of these activities can be touch points on which the mediator can build rapport and establish a connection with the parties. If the mediator participates in similar activities, he can briefly talk about the activity and start building trust and rapport.
Goldberg’s research teaches us two important lessons. One is the importance of relationship building, especially in contentious situations. Some measure of trust is required before people will open up and reveal their true interests and goals. The other lesson is that the hallmark of an artful and successful mediation is each party feels listened to and acknowledged, rather than maneuvered and manipulated.
Mediators can build rapport and trust in the following ways:
- Be empathic to each party’s feelings, concerns, financial and emotional stressors, fears and insecurities.
- Be prepared by knowing about the case, the issues and what each side wants, but more importantly, why they want what they want.
- Engage each party. You cannot build trust and rapport, without engaging with each party to learn the party’s interests, needs and goals and getting them to open up to you.
- Use good communication skills.
- Listen to their concerns, acknowledge and resolve.
- Make sure they know that you care. Express appreciation.
- Work hard and have patience.
- Remember that bad words isolate. Good words connect. A mediator’s tone of voice can change whether a word is perceived as good or bad.
- Oliver Wendell Holmes, United States Supreme Court Justice, when explaining the difference between intentional and unintentional torts said, “Even a dog can tell the difference between being stumbled over and being kicked.”
- Be genuine.
- Remain neutral and honest.
- Be agent of reality.
- Resist the urge to threaten.
- Don’t go on a power trip. Escape the cycle of action and reaction.
- Manage emotions. Separate the people from the problem.