Tips

The success of a mediation lies in the willingness to collaborate. Understanding each other’s perspective, needs and interests is key. But how do you alter another person’s viewpoint when they appear glued to a particular stance or steadfastly cling to an opening number? How about when your own prior experiences with a party or their legal counsel lead you to distrust them? Sometimes, we need to reexamine long-held beliefs and hit the refresh button.

Preconceived notions and automatic associations are examples of cognitive bias and distortion. To effectively negotiate, we need to be aware of cognitive bias and distortion and how each adversely affects judgment and decision making.

Cognitive biases involve a tendency to be inclined in favor or against something. When they are at play, a person lacks a neutral viewpoint. Cognitive distortions are thinking errors. They can lead to inaccurate perceptions of reality and illogical inferences. Both are automatic and occur in everyone to some degree and both can result in irrational decisions. This article will address the ten most common cognitive biases and distortions that arise during mediation and will help you to understand and deal with them.

1). Why do Cognitive Biases and Distortions Occur?

Cognitive biases and distortions cause individuals to make erroneous assumptions, instinctively categorize people and things and rely on mental shortcuts when making decisions. When someone speaks in terms of what “should” be said or done, it is a clue that a cognitive bias or distortion is influencing their perspective. They may mistakenly believe their feelings about a situation are a reliable indicator of reality.

In mediation, the deleterious effects of cognitive biases and distortions can be minimized by identifying the specific bias or distortion, explaining how it impacts judgment and encouraging thoughtful and thorough consideration of a range of options.

2). Anchoring Bias

Anchoring bias occurs when individuals over rely on the first piece of information they receive. This information becomes a reference point, or anchor, which affects subsequent judgments and decisions. A fact or figure becomes anchored in the mind.

When negotiating a monetary settlement, what is considered reasonable can be greatly influenced by the first offer. Whoever makes that first offer generally has an advantage because anchoring bias essentially causes the parties to place excess weight on the initial offer during subsequent negotiations. The first offer acts as an anchor establishing the range of acceptable counteroffers.

Anchoring bias also impacts non-monetary negotiations. For instance, in the case of personal injury, anchoring can influence decisions about the amount of psychological services to which an individual is entitled to address emotional distress. In the criminal law context, an original excessive charge may persuade a defendant to accept a plea bargain to a charge much more serious than a probable jury verdict because of the anchoring effect.

Anchoring bias can be diminished by suggesting consideration of a range of possibilities rather than a fixed number or a specific solution. Mediators also can stimulate critical thinking and challenge the assumptions underlying the anchor. A useful exercise may involve writing down an original offer, followed by three or four potential alternatives.

3). Confirmation Bias

Confirmation bias is the tendency to value and focus on ideas that affirm preexisting beliefs. This leads individuals to discount facts and reject information that contradicts their preconceptions. Like an echo chamber, confirmation bias reduces objectivity and reinforces preexisting beliefs.

People may become blinded to potential alternatives. For example, if the plaintiff demonizes the defendant and believes the defendant is untrustworthy, the plaintiff will look for and internalize information that confirms that negative view. Confirmation bias shapes not only how information is gathered, but also how it is interpreted and recalled. It can lead to faulty choices based on incomplete information.

In mediation of a guardianship matter, confirmation bias may influence a family member to become disenchanted with and overly critical of a guardian who has done something to upset them. They may search for evidence supporting their belief the guardian is doing a poor job and discount any evidence to the contrary. An isolated, negative experience may become magnified beyond what is warranted by the overall situation.

Confirmation bias can be countered by encouraging consideration of all relevant facts, not just those that confirm preexisting beliefs, and scrutinizing the accuracy of the memory of pivotal events. The mediator may ask a party to consider if any empirical evidence or principled basis exists for the other party’s perspective. The bias can be challenged by creating a chart listing the belief, the evidence supporting and refuting the belief and the probable outcome if the case proceeds to trial.

4). Labeling and Overgeneralization Distortions

Labeling is a cognitive distortion in which people reduce themselves or others to a single, typically negative, characteristic, like a “liar” or “cheat.” Rather than viewing the person’s behavior objectively, there is a tendency to globally label the person in a derogatory manner. As a result, any information that does not support the label is filtered out. Making a broad assumption about a person based on an isolated behavior or event, is almost always inaccurate.

Overgeneralization is a related cognitive distortion that involves drawing overbroad conclusions based on limited information. People may reach a conclusion based on one or two experiences, then see patterns where they do not exist and incorrectly draw sweeping conclusions about unrelated events.

In a mediation, a party may predict settlement will never occur because of a previous unsuccessful attempt to resolve a matter with the opposing party. They may unreasonably expect the unpleasant experience to occur repeatedly.

This distorted thinking can be addressed by asking a party to define the terms they are using and itemize the evidence that supports, as well as contradicts, their belief or prediction. Mediators can foster logical thinking by inquiring whether conclusions are based on a substantial amount of relevant data or merely one or two pieces of evidence. Mediators may want to gently raise the possibility that feelings, rather than logic, are guiding the party. Distinguishing between opinions and facts also can diminish the ramifications of this cognitive distortion.

When someone engages in labeling, one simple approach is to ask them to objectively describe the behavior. If they view the behavior as the problem, rather than the person, it becomes easier to discuss interests and concerns and reach a meaningful resolution.

Mediators can urge parties to assume good intentions and give the other party the benefit of the doubt. Remind the participants a first impression is merely an initial impression that is incomplete and often inaccurate. If they would like to test this theory, suggest they watch an episode of the “To Tell the Truth” game show and try to guess the correct contestant based on their first impression of the mystery guests.

Negativity Bias

Negativity bias is a tendency to focus on and remember negative rather than positive experiences. The human brain is naturally attuned to negativity and perceives adverse incidents as more influential than positive ones. Negativity bias can influence perception as well as memory. When a person concentrates on the potential downsides of a decision, they also tend to avoid risk.

Negativity bias has an evolutionary genesis. Humans are hardwired with a negativity bias based on our pre-historic ancestors who needed to be keenly aware of potential dangers to protect survival of the species. Neuroimaging research has demonstrated negative stimuli lead to a surge of electrical activity in certain areas of the brain. Negative events and experiences imprint more quickly and linger longer than positive ones according to Washington University professor and researcher Randy J. Larsen, Ph.D. Therefore, people are more likely to remember and dwell on an insult or unpleasant event than a compliment or a joyful event.

Because of the negative feedback instinct, there is a tendency to spot flaws first. In mediation, negativity bias may result in a perfectly reasonable offer being rejected summarily without careful consideration.

Negativity bias can be reduced by reflecting on good things that have occurred, listing approaches that have been successful, and considering the best-case scenario as well as the most realistic scenario. The mediator may encourage participants to focus on the positive features of a proposed settlement. Asking them to put themselves in the shoes of the other party also may promote a different perspective.

Optimism Bias

The reverse of negativity bias is optimism bias, also known as the illusion of invulnerability. Optimism bias causes individuals to overestimate the probability of a positive outcome and underestimate the risks. Unduly positive assumptions can lead to disastrous results. A related concept is the ostrich effect, which is the tendency to ignore apparent weaknesses.

In mediation, optimism bias may lead participants to believe their case is stronger and their chance of success at trial is greater than reality would suggest. Optimism bias can be curtailed by suggesting participants moderate optimism and proceed with caution to consider the strengths and weaknesses of their case, potential risks of proceeding forward and probability of a negative outcome.

In caucus, the mediator may ask the participants to consider the worst-case scenario. Creating a matrix, which sets forth the best, worse and most likely outcomes and the probabilities of each occurring, may be helpful. The mediator can guide them through realistic weighing of the evidence to reach a balanced and sensible decision.

Polarized Thinking Distortion

Polarized thinking, also known as dichotomous thinking, is a cognitive distortion in which people view things in two distinct categories rather than on a continuum. It involves all-or-nothing thinking, viewing things as black or white, good or bad, with no gray zone or middle ground. Thinking in the extremes does not promote compromise and is unrealistic because the truth generally lies somewhere between the two extremes. A sign of polarized thinking is the use of absolute words, such as “always”, “never”, “all”, and “nothing”.

Sometimes a fallacy of fairness is at play. An individual may believe life should be fair and when things do not work out the way they think is fair, they may become resentful. The assumption that life is fair is a fallacy not based on reality.

Polarized thinking can be ameliorated by consideration of objective evidence and other information that would support different conclusions. The mediator can stimulate conversation about exceptions and shades of gray. In caucus, the mediator can help individuals to expand their thinking and recognize a continuum by placing potential outcomes on a probability scale of 1 to 10. Alternatively, the mediator may suggest a break to evaluate a multitude of feasible options and reconsider crucial decisions.

Endowment Effect Bias

Endowment effect, also known as divestiture aversion, is the tendency for people to ascribe a higher value to something they own and expect more money to relinquish it than they would be willing to pay to acquire it. The mere fact of possessing an object can heighten perception of its value.

Loss aversion involves people being more interested in avoiding loss than in obtaining gains. The pain of losing is experienced more acutely than the pleasure of winning. People sometimes make flawed decisions based on an aversion toward loss.

In mediation of a partnership dissolution, a party may overestimate the value of their partnership share and discount the benefits of a proposed buyout. They may be more concerned about giving up rights or assets than they are interested in obtaining fair compensation.

The endowment effect may be reduced by asking a party to suppose the right or asset was on the market, to consider the factors an average person would find relevant in ascertaining its value and then determine the amount that average person would be willing to pay for it. Another approach would be to ask the party to imagine they were the other partner, what would they be willing to pay to acquire the partnership interest. Alternative views also may be fostered by asking the party to consider the consequences of adhering to the endowment effect.

Functional Fixedness Bias

The functional fixedness bias involves seeing or using an object or idea in only the way it is typically used. This bias can lead to being stuck and viewing a problem in one specific way. It impedes the ability to think “outside of the box” to find innovative solutions.

In mediation, a participant may become fixated on a precise remedy, rather than recognizing a variety of options may meet their underlying interest or concern. For example, in a special education dispute, the parent may believe individual speech therapy for one hour three times per week, which the school has previously provided to their child, is the only means of improving their child’s speech and language. Not recognizing that speech and language consultation to the teacher, a social skills group overseen by a social worker or speech therapist, paraprofessional support, and time in the general education classroom with peers may also contribute to reaching the desired goal.

Functional fixedness can be overcome by inviting participants to brainstorm a plethora of possibilities. Divergent thinking can be enhanced by asking participants to cite as many options as possible, without critique, prior to engaging in more convergent thinking to select acceptable solutions. A reluctant party may be asked to play Devil’s Advocate and challenge their adherence to one particular outcome. The mediator also may urge participants to genuinely listen to each other, be curious about other points of views, set aside preconceptions and suspend judgment before making a final decision.

Status Quo Bias

Status quo bias is the tendency to want things to stay relatively the same as they have always been, following the path of least resistance. People tend to prefer the familiar and often fear the unknown. Maintaining the status quo minimizes the risks and costs associated with change, but it also may result in people missing out on potential benefits that may outweigh the risks. Loss aversion is a primary reason underlying status quo bias.

Some people are overwhelmed by too many options and suffer from “choice overload.” This phenomenon can amplify the sense that change is complex and costly and should be avoided. In mediation, status quo bias may be at play if a party steadfastly insists on keeping things exactly as they are and resists any proposed change.

Status quo bias can be countered by helping a party to perform a realistic cost/benefit analysis of maintaining the status quo and making a change. A discussion of the pros and cons of staying on the same path or moving in a new direction may also be useful. The mediator could suggest they consider whether they would give the same advice to a good friend in their situation. The experience can also be normalized by acknowledging that everyone has biases that affect their decision making and can benefit from new experiences.

Sunk Cost Bias

Sunk cost bias, also known as escalation of commitment, involves continuing to do what an individual has been doing merely because they have invested time, resources or energy into it. For example, an individual might stay at a concert even when they are not enjoying the music because they paid a substantial amount for the ticket. A sunk cost is a cost that has already been paid for and cannot be recovered.

In mediation of an employment matter, an employee may demonstrate sunk cost by seeking reinstatement to their job, even though they dislike their work, simply because they have spent so much time at the job and with their co-workers they cannot see themselves in a different job.

Another example of sunk costs would be when a party resists settlement because they are upset about the amount of time, money and energy they have spent litigating the dispute and believe they must see it through until the end.

As with several other biases, loss aversion underlies this bias. Having strong emotional connections and a drive to preserve investments can lead to poor decisions not based on current realities.

Sunk cost bias can be diminished by pointing out that although time and money may have already been expended, where time and money is spent in the future is within their control. The mediator can encourage parties to consider the bigger picture, their ultimate goals and vision for the future. A bird’s eye view facilitates objective analysis of the case strengths and weaknesses and realistic assessment of the chance of success. It may be helpful to point out the ability to accept mistakes and learn from them is an important part of making better decisions in the future. While calling it quits can be painful, it frees up energy and resources to pursue new opportunities.

Framing Effect

Mediators often employ the framing effect, which is a cognitive bias, to help parties draw more favorable conclusions from essentially the same information. Perception of a situation can be significantly influenced by how information is presented. Judgments and reactions can change depending on whether issues are framed in a positive or negative light.

Prior to mediation, while working with parties individually, the mediator can coach the parties to frame their concerns in a manner the other party is likely to hear. During the perspective sharing portion of mediation, the mediator can reframe caustic statements in more neutral and constructive terms to improve the other party’s understanding and receptivity to the underlying message. Reframing is also useful in converting deeply entrenched positions into underlying needs and interests.

When presenting a reasonable settlement offer, the mediator may wish to focus on what each party gains, rather than loses, to increase the participants’ receptivity to the offer. Because of loss aversion, a loss often is perceived as more significant, and worthy of avoiding, than an equivalent gain. Mediators can present an offer or proposal in a manner that makes it more attractive. For instance, with permission of the plaintiff, the mediator may take a proposal of $79,500, rather than $80,000, to the defendant to make the figure more palatable.

Word choice also impacts perception. A dispute may be reframed as an opportunity. A crisis may be viewed as a challenge. Even the pronoun selected can influence the listener’s experience and the outcome. Kenneth Cloke, a nationally recognized mediator, trainer and author has pointed out the pronoun “we” tends to foster collaboration and build consensus. The word “it” may facilitate problem solving because the participants can attack a thing rather than each other. Conversely, “they” may promote stereotyping and prejudice. “You” is more likely to result in accusations, denials and counter-attacks.

Professor Robert Cialdini has pointed out the choice of financial terms can shape how people perceive a situation. For instance, “purchase” or “investment,” which are associated with gain, are more likely to be receive a positive reception than “cost” or “price,” which are associated with loss.

Parties may also react to the context in which something is embedded, not just to the thing itself. A trial may seem distant and unlikely when the parties are engaged in early stage mediation, however, it looms large on the eve of trial and frequently involves much more than the parties anticipate. The mediator can help the parties and their legal counsel consider the demands of trial by discussing the realistic time, money, and energy that will be required.

Conclusion

Cognitive biases and distortions are automatic and universal. Mediators can help parties and their legal counsel to effectively and compassionately address cognitive biases and distortions that impede rational decision making. Recognizing the bias or distortion involved, understanding its impact and employing strategies to reduce its negative effects on negotiation can greatly enhance the resolution process and promote mutually satisfactory and enduring outcomes.
Source: This wonderful article was written by Kathleen Kauth. https://www.mediate.com/articles/athens-cognitive-biases.cfm

Elder and dependent adult abuse is a serious problem in our community. Attached is a publication to help us recognize elder and dependent adult abuse and learn what to do about it. Elder Abuse -- Guidelines for Professional Assessment and Reporting was written by the Elder Abuse Task Force of Santa Clara County. It is provided for general educational purposes. It is not intended to replace your own reading and command of the elder and dependent adult abuse reporting law contained in California Welfare and Institutions Code section 15600 and following sections, nor to replace the advice of an attorney where appropriate. This publication is written for professionals, but others in our community can also benefit from the information presented regarding elder and dependent adult abuse. Thank you for helping protect vulnerable elders and dependent adults. The Elder Abuse Task Force of Santa Clara County.

https://www.elderconsult.com/wp-content/uploads/20190305-ElderAbuse%E2%80%93%E2%80%93GuidelinesForProfessionalAssessmentandReportingJanuary2019.pdf

The idea behind the concept of Adventurous Thinking (AT) is quite simple: What if you thought differently than you usually do, in a given situation, because you have been challenged to think differently ? AT is a method to change the way you normally think which allows you to come up with different ways to solve an issue.

For example, if you always drive to work the same way every day, you probably don’t notice the houses, the intersections, the stores on your route anymore. You have become so accustomed to seeing them every day that you no longer are really aware of them. If you were to drive to work on a different route, you would systematically be more aware of similar objects on this route. What changed ? You are still driving your car, you are still going to the same destination but because the route does not fit into the scope of your routine you pay more attention to your surroundings.

Adventurous Thinking applied to mediation operates exactly the same way. You have your own perception on how the dispute should be solved and why, based on all the thoughts and introspection you put into it. As far as you are concerned, your solution to the problem is clear and undeniable. You have the arguments and the logic to demonstrate it. You routinely reflect on your alternative to solve the problem and find nothing wrong with it. Consequently, the more you think about it the more you are convinced that your solution is the only alternative.

Now if you consider that the other party is probably thinking the same way you do and also consider that their solution is legitimate, we end up with 2 affirmative solutions to a problem that has not been solved. Under these circumstances, AT will help each party expands his or her ability to see the issue from another perspective.

AT is the combination of the latest research on neural pathways with modern design thinking. AT uses tools and techniques that allow every user to be more actively curious and more consistently innovative. As described by Sally Dominguez the guru of AT, "AT develops an agile mindset by deliberately provoking participants into a thinking state where they are required to develop new neural pathways as alternatives to their expert state of mind. This expert state of mind translates in a mediation process into the "routine and affirmative" thinking described above."

AT is based on the cumulative use of 5 tools known as the Five Lenses. The Five Lenses enable groups and individuals to prolifically and quickly uncover options that can improve problem solving challenges.

The five lenses for AT are as follows:

1. Negative Space is what is NOT. Negative space is that physical, emotional and longitudinal amorphousness that is NOT the focus or the subject, but the physical, durational and perceptional context in which it exists.

2. Thinking Sideways is an extension of empathetic thinking and builds awareness of how our personal preferences dictate the way we interact with others. Sideways Thinking is valuable for understanding how your personal tendencies might be compromising your decision-making and interactions with others.

3. Thinking Backwards uses life cycle analysis information to consider where a project ends, and how the elements and functions that make up a dispute, can be improved.

4. Re-Thinking involves rediscovering and exploiting your core values. It is an extreme lens for reconsidering a situation as a resource and the tools to pivot and proliferate.

5. Parkour Thinking is the most risk-positive thinking strategy. When successful, it results in an improbable innovation leap. Otherwise, it sheds new understanding and meaning on wicked problems.

Mediation saves time and money

Many mediations are completed in one meeting thereby saving time and money.

Mediation allows the parties to participate

In mediation the parties can openly discuss their views on the dispute and fully participate in forming a resolution to the dispute.

Mediation is fair and neutral

All parties can participate in the process and determine the settlement. The mediator is neutral and serves to facilitate the discussion but does not act as a judge. There is no determination of right or wrong.

Mediation is confidential

Information disclosed during a mediation is confidential and cannot be used later in court. Therefore the parties can feel free to discuss their position without worrying that it will be used against them later.

Mediation encourages cooperation

Mediation creates a place where the parties can openly talk about their perspective on the dispute. The mediator can facilitate the discussion and the parties and can work together to create a resolution.

Mediation allows the parties to design their own resolution

Mediation can allow the parties to reach a full resolution of all issues.

With mediation, everybody wins

Surveys have shown that parties who used mediation would use it again.

A – Authority

Your client, the opposing party, both, must have the authority to settle.

Having a client who has the knowledge and authority to make decisions is crucial. If you represent someone at the table who has no authority, or the person with authority remains absent, and you have no power of attorney to represent and make decisions, it would surely suspend settlement proceedings and induce mistrust among parties.

B – Behaviour

Prepare yourself and your client to sit across the table with the ‘other’.

Mediation has no scope for sections of the law, court judgements, precedents, and other litigation jargon. The language - both verbal and nonverbal, must resonate a genuine willingness to collaborate. Advise your client against arrogant and defamatory language. Being approachable and available is key to reaching common ground.

C – Caucus

Break into a private session if negotiations are failing.

Be honest with the mediator about your client’s real interests and be prepared to reveal information you have held back in the joint conference.

D – Disagree

If you think otherwise, disagree! A successful resolution depends on your advice.

Mediation is not a space to decide ‘right’ versus ‘wrong’, rather acknowledge and respect the differences and work towards fixing the friction. But, if the other party is peddling erroneous facts or levelling false allegations and claims, then you must step in and contest the same. Disagree, set the facts right, get everyone on the same page and move on. Be decent in dissent.

E – Evidence

Use evidence to substantiate your point, eliminate false claims.

The key is to use evidence to forward your interests and not to destroy the other’s interests. The approach is important - prove your point, don’t get adversarial. Documents or digital evidence can be used to clear doubts, clarify and confirm facts and misunderstandings. Some revelations may be confidential, these may be introduced during caucus.

F – Focus on the problem

It’s natural your client gets emotional, you need to steer the mediation.

Focus on the problem rather than the emotions. Always remember why you are at the table and ignore taunts.

G – Give in, don’t give up

It’s alright to compromise a little, if it satisfies the bigger interests.

Don’t treat it as a step back to agree to some good faith offers and requests from the other party. If it’s letting you get out of an impasse and is moving the negotiation forward, it is certainly a step in the right direction. Evaluate and analyse offers without emotions, match them to your core interests and take a calculated decision.

H – Humour

If your client can’t hold it together, you gotta lose it before she/he does.

Your sense of humour will help you get out of tough situations. If you feel your client is giving in too much or speaking more than he should be, you can always barge in with a joke. Interject with some wit, navigate a break and immediately provide counsel in private.

I – Interests

There will be many, prioritize them.

Prioritizing your interests will help you decide where you can go easy and where you need to be tough on what you want out of the mediation. Help your client discover his / her interests in the conflicting situation. Be smart about short-term needs and long-term goals.

J – Justification (Don’t)

No room for screaming excuses for your client’s behaviour.

“We regret it, but…” is a terrible way to start. Even worse is blaming your client’s behaviour on someone or something, when what he/she did was unpardonable. An apology goes a long way in breaking down egos and anger. Encourage your client to be honest and accept that there he/she might have contributed to the conflict at some stage.

K – Keep the communication on

Even in chaos, make sure your client is still in dialogue.

It is hard to reach common ground (forget resolving) if the parties don’t dialogue. Therefore, don’t cut people off when they speak, avoid interruptions and never fend off an idea – no matter how ridiculous it sounds. Try and bridge the communication gap – seek clarifications, confirm details, clear doubts, address misunderstandings, make changes in communication patters.

L – Legal Issues

Identify and analyse the legal issues in your client’s case.

Knowing your client’s legal premises is only the beginning. Understanding the position and anticipating their alternatives out of a mediation setting is the next step. There may be some issues in the agenda that cannot be mediated it does not mean you cannot mediate the rest of the issues.

M – Man marking

As much as possible, direct your conversations to the other party’s counsel.

Address only those matters which deal with business, liabilities and legalities, don’t get involved in the personal matters. Leave the emotions to your client, focus on the problem.

N – No Adversarial Jargon

Your verbiage must be strictly collaborative without taking away the edge.

This doesn’t been you become 100% accommodating and compromising, let your competitive personality stay with you, but avoid adversarial language like – precedents, witness, arguments, issues,opposition party, responding party, defendants, etc...

O – Orientation

Acquaint your client with your role, the process and possible outcomes.

It is important to make your client understand that you are not his/her litigating lawyer in a mediation session, but a ‘Resolutionary’ one, and so, your role is different. Explain the process and the principles of voluntary participating, confidential conversation and neutral facilitation. This, of course, is something you would do much before you get to the table.

P - Privacy

Explain confidentiality, the extra layer of security during Caucus.

It will create an atmosphere of trust and allow your client to be more open with her/his intentions and interests and more inclusive with his option generation. He/She must be reminded that anything said or heard cannot be presented in court and cannot be used as evidence before a judge.

Q - Questions

Question must facilitate dialogue, not curb it.

There is no scope for interrogation or cross-examinations, but you may ask innumerable questions.Close-ended questions make people defensive and nervous, producing dishonest and cautious responses. Open-ended questions allow honesty and frankness.

R – Research

Spend time researching, before brainstorming solutions.

You must be careful with the options you generate – check good practices and alternatives available, before deciding to make an offer. You must help your client look at his / her strengths and weaknesses and the other party’s too.

S - Sign

Before you seal it, check for air bubbles.

Be prepared to sign a settlement agreement. Stalling can lead the other party to lose trust or change his/her mind. Check for timelines, deadlines, liabilities, capability of commitments, and every small detail before signing.

T – Tough on problem, soft on people

Respect emotions, but don’t lose focus of the job.

Cut the person some slack on the emotional and psychological aspects of the case, but don’t compromise on your priorities and needs that you bring to the table. Encourage your client to listen emphatically, acknowledge and reflect good vibes. Summarise and rephrase negative language.

U – Use tact when at Impasse

Sensitivity and skill go hand-in-hand at Mediation .

Change perspectives, take a break, move to another issue on the agenda, call for a cross-caucus, explain consequences of mediation failing, highlight positives, encourage client to express change in approach, reframe negativity, rework reservation points, prioritise relationship over resolution and if needed, reschedule session.

V – Vetted Agreements

Make sure you have it examined by the best in the business.

If there are technical pointers in the clauses of the contract, it is very important that a lawyer gets these scrutinised by experts from that field if needed.

W – Win-win approach

Move away from the “win at all costs” attitude.

Everything you and your client does has to convince the other party and his/her counsel that you two are being collaborative and working in good faith to resolve. The options you generate must be mutually satisfying, therefore adding value and enhancing the appeal of a proposed solution is key to getting the other party to participate in problem-solving. Don’t be afraid to ideate and think out-of-the-box.

X – The X-Factor

It’s time to show-off the learnings of law school.

You have something your client doesn’t – the understanding of the law. Go well prepared and whenever the opportunity arises, take a break and explain the legal aspects of whatever your client is proposing or accepting or rejecting. Be ready with advice and suggestions and counsel your client in private, which will convince him/her you are working as a team.

Y – Your Role

Mediation is a self-determined process, neutral party cannot force settlement.

Let you client take the decisions, this way her or she will feel empowered and find the process more inclusive. If it’s resolved – you benefit on time and costs, just like your client. Keep it brief, persuasive and focused. This is good time to politely let the other party know “the case will be lose-lose in court” and “mediation is best for both”.

Z – Zsilence (The z is silent)

Silence is powerful – it keeps the other party grounded.

Anything that is unknown and unreadable makes someone engaging in it uncomfortable. Remember, you are the sidekick in this battle. Let your client take the lead, and you anchor this teamwork. Especially when things get heated up, try and use lesser words. Budget your words when it gets argumentative. The more you listen, the more information you draw. LISTEN - it makes you stand out from being an adversarial lawyer who only speaks!

Source: by Jonathan Rodrigues -Jonathan is the co-founder and partner at The PACT. He is the founding - president of Lex Infinitum, Goa and Intercessionis, Pune. He is the co-creator of Advocate Maximus, the arbitration-mediation competition premiering in New Delhi in 2018.

Anger (the red-eyed monster) is a basic emotion, and one of the seven deadly sins (Lerner& Tiedens, 2006). In addition to the evolutionary roots, cultural norms and personal cultivation contribute to the anger tendency (Litvak et al., 2010). However, in the end, anger confuses more than it helps. Anger makes people punitive, careless in their thought, and eager to take action (Nussbaum, 2018).

1. The focus in ager is a wrongful act. Anger is not just a physiological disturbance. We get angry at someone, about something. Anger is basically a judgment that one has been wronged or offended. For this reason, a common reply to anger is “Don’t be so judgmental.”

2. A desire for punishment. The action tendency of anger is aggression. Human beings have a general desire to see wrongdoers punished. There is a pleasure in balancing the horrible act that occurred. It makes us feel control rather than helpless.

3. Anger is a byproduct of fear. Anger is often an outgrowth of fear. For example, consider the mixed emotions in divorce. Husbands’ reactions are often dominated by anger. After a divorce, the stability and security that he was counting on suddenly vanished. A therapeutic goal in these situations is to help them recognize that some of their negative emotions may come from sadness, hurt feelings, and fear.

4. Anger masks helplessness. Anger is often a mask for helplessness, and it is a way of reasserting control and self-respect. For instance, an event that causes anger typically involves someone blocking your goals or offending you or someone close to you. Anger is a way of not being helpless and aims at restoring lost control at least an illusion of it.

5. Ego injury. Anger is often about narcissistic injury (or self-importance). And the thought about status is what makes anger persist and fester. The obsessive focus on relative status makes perfect sense for the act of vengeance. Retaliation puts the other person down and the self up (the zero-sum game).

6. An urge to blame. When we are hurt and angry, we want someone to be blamed (or held responsible) for our pain. We feel superior by blaming others. It pleases our ego to believe that any bad event is someone’s fault. Anger is a distraction of attention from solving the real problem. Anger is easy, but it is hard work to come up with a constructive solution.

7. A substitute for grieving. Anger becomes an appealing substitute for grieving. Anger often hijacks the necessary grieving process. Grieving and facing life after a loss eventually moves us forward in life.

8. Anger is the primary emotion of justice. Anger is built into our genes to punish the cheater in the game of cooperation. There are times when it is perfectly right to get angry. For example, after being humiliated in public, getting turned down for a promotion that one clearly deserved, or being repeatedly bullied, one has the right to get angry.

9. Anger instills confidence and clouds judgments. Angry decision makers typically process information in distorted ways, fail to consider alternative options before acting. Anger triggers optimism about oneself. It triggers a bias toward seeing the self as powerful and capable.

10. Joyful wrath. Some people use anger, and the threat of their anger, to intimidate and manipulate others. People tend to pay particular attention to angry faces. How did they learn to do this? Emotions are habits—the product of practice and repetition. It is very rare for a person to get angry just once. They become addicted to their emotions. They learn to energize themselves by getting angry. Like other addictive substances, anger may be rewarding in the anticipation of rewards but harmful in the long run. The rush and optimism of anger may lead people to make unwise choices in which they fail to take perspectives of others.

Forgiveness. There is a better alternative. The proper management of anger is the attitude of forgiveness. Forgiveness is a journey that liberates the self from anger and vindictive wishes. The angry person is always well advised to begin moving beyond anger as soon as possible, in the direction of the long-term goal of developing happiness and self-respect.

Another strategy is to cultivate a sense of humor by stepping out of one’s own sense of superiority. Martha Nussbaum (2016) recommends, as a way of coping with extreme anger, that we cultivate an attitude of detachment toward ourselves so that we simply don’t perceive what happened to us as the most world-shattering thing. As indicated in the ancient book, The Way of Life by Lao-Tze: If you never assume importance, You never lose it.

Source: Shahram Heshmat Ph.D @ https://bit.ly/2BFpVWG

How many times have you left a conversation with a loved one feeling frustrated; like they didn’t listen to a single thing you said? Or maybe everyone involved continued to talk over one another, making any communication seem impossible?

For most of us, it has happened more than once or twice. Not only are these kinds of discussions unproductive, but they can lead us to feel angry and irritated with that person, making future communication even more difficult.

The good news is that communication is an interactive process and there are steps you can take to improve your connection with others! Here are a few tips you can utilize to create better dialogue:

1. Recognize your role.

Communication is often a two (or more!) way street and it is important to recognize the role that we play in our communication with others. If conversations frequently take an unfortunate turn, give some thought to how you can improve the outcome. Remember: we can’t control the behavior of others, only how we react to that behavior. So make a plan to go into conversations with positive intent!

2. Practice active listening.

Why is it so frustrating when someone cuts you off or talks over you? It’s because you know they aren’t taking the time to listen to you. It is important to listen and wait for our turn to speak. It is the key to building empathy and trust. Active listening is a set of skills that helps you to be a better listener, such as:

• Demonstrate concern. Simply asking “How can I help?” is a great way to start.

• Ask open ended questions – Questions that don’t yield a yes or no answer spark more conversation.

• Make sure you get the whole story first. It is important to understand the situation fully before expressing your opinion or providing advice. This way, you can avoid a misunderstanding or jumping to conclusions.

• Be patient and don’t worry about filling the silence. Sometimes people, especially seniors, need a moment to collect their thoughts.

3. Speak your truth.

Often when our boundaries are disregarded, we get angry, sad, or frustrated. When we hold those emotions inside, as we often do with family, they begin to color the way we communicate. Establishing our boundaries and communicating our feelings openly are important steps in healthy communication. “I am not comfortable with this.” “I am frustrated by that.” Practice using “I” statements to begin communicating your feelings and speaking your truth.

4. Acknowledge the truth of others.

We can never truly know what is going on in someone else’s head but we can try to look at things from their perspective. Another person’s thoughts and feelings are true for them, even if they aren’t true for you. They aren’t lying. Their truth is simply different from yours. So acknowledge their truth, and know that it is OK to have a different perspective.

5. Understand your emotions.

The emotions you feel directly impact how you communicate. Understanding those emotions is key to making a better plan. For example, if you know a certain person or topic makes you uncomfortable, have a strategy to handle those conversations, such as excusing yourself to clear your head. Another strategy for handling emotions is to acknowledge them openly. “This conversation makes me uncomfortable. Could we talk about something else?” By sharing your feelings, you validate your emotions and prevent them from derailing the conversation. And others will appreciate your candor!

6. Create space for communication to thrive.

Studies show that uncluttered, bright and inviting spaces encourage conversation. In addition to creating a comfortable space, you can foster opportunities for conversation to develop. Try inviting the other person to dinner, taking a walk together, or perhaps a long drive. Be cautious in your use of modern communication. Email and text messages can be a great way to stay in contact but so much is lost in tone and translation. If you are having difficulty communicating, try making a voice call or visiting in person. The space you create for healthy communication will be worth the effort.

7. Keep the conversation flowing.

According to renowned marriage and family therapist John Gottman, our perception of relationships is built on a “magic ratio” of 5 positive interactions for every 1 negative interaction. What does this mean for families? If you only reach out when something is wrong and don’t balance that with pleasant conversations, the other person will perceive the relationship negatively, making it increasingly difficult to communicate in a healthy way. So make the effort to keep your ratio up! Call just to say “hi” or share some good news. Sharing positive moments can make all the difference.

Both you and your family can benefit from healthy conversations. Be open, kind, and respectful. And when in doubt, press pause and walk away. By practicing these tips in your everyday conversations, your relationships will improve and your family will feel more at ease.

A divorce can take years—and cost a small fortune—to resolve. The task of negotiating child and spousal support, dividing property and other possessions, and establishing child-custody arrangements can be overwhelming, especially when the principals are barely speaking to each other. In the worst-case scenario, separating spouses hire cutthroat lawyers to make rigid (and sometimes outrageous) demands, the two sides dig in, a judge takes over, and animosity reaches a fever pitch.

Source: https://www.mediate.com/articles/sereday-7-tips.cfm

It’s a common misconception that you need to hire a lawyer for divorce. In fact, there is no law anywhere that requires you to involve attorneys at any point during your divorce negotiations. Most couples hire divorce lawyers because they don’t know there’s a better alternative or they think their case is much too difficult to be handled any other way. There's no doubt the issues surrounding divorce are complex so it’s best to work with someone who is well-versed in the areas that need to be resolved. But that person is not necessarily a lawyer.Then how can you get a divorce without a lawyer? Two words: divorce mediation.Divorce mediation is a non-adversarial, alternative dispute resolution process led by an impartial and neutral professional mediator that helps divorcing parties respectfully resolve the issues of divorce, out of court.

Divorce mediation would seem to offer a more peaceful alternative to traditional adversarial divorce negotiations. And, indeed divorce mediation has been found to achieve higher settlement rates than litigation. In a 2012 study of 469 divorcing individuals in Belgium, researcher Rachid Baitar of the Catholic University of Leuven and Ghent University in Belgium and his colleagues examined: the effectiveness of divorce mediation and how it and related processes can make divorce less difficult and how does the quality of divorce agreements facilitated by mediators compare with that of agreements obtained through lawyers. About half of the participants reported experiencing a high level of conflict with their spouse before the divorce; for others, conflict was less intense or minimal.

In the study, a mediator assisted 30% of participants in reaching agreement; the other 70% of participants were helped by a lawyer. As compared with participants who engaged in litigation, participants who engaged in divorce mediation reported reaching higher-quality agreements, as measured by how tailored, fair, comprehensive, and clear those agreements were. Notably, the results of Baitar and his colleagues’ study need to be qualified by the fact that the participants themselves chose whether to mediate or litigate. It could be that those who chose divorce mediation entered into the process with a less combative attitude than those who chose litigation, a difference that would weaken the study’s results.

In addition to looking at whether the divorces were mediated or litigated, the researchers examined the negotiating style of the mediators and lawyers involved. In a facilitative mediation, the mediator focuses on helping parties carry out a smooth, open conversation; in an evaluative mediation, the mediator may also evaluate parties’ positions and even propose a settlement.Study participants whose mediator or lawyer took a facilitative approach to the negotiation, as measured by their tendency to engage in problem-solving behaviors and help their clients focus on interests, generally reported high-quality outcomes.

In a nutshell, there are many benefits to mediating a divorce. Here are just a few...

1). Peaceful: Just because a couple has made the decision to end their marriage doesn't mean their divorce has to become a war. A divorce mediator helps parties attack problems, not each other - focusing on respectful dialog and finding agreement and solutions that benefit both spouses and their family. Enabling couples to have a peaceful and amicable divorce.

2). Fair and Equitable: The terms of the divorce agreement are fair because they are reached and agreed to by both spouses. One party cannot "win" at the expense of the other as resolutions must emerge from the process with a fair divorce settlement created and acceptable to both parties.

3). Less Expensive: Divorce mediation costs a fraction of a traditional divorce litigation, court trial or series of hearings.

4). Better for Your Children: Children aren’t caught in the middle of a confrontational family court process or traumatic heated custody battle. Instead, parents work together to resolve the issues with the children’s best interests in mind. A non-adversarial approach fosters more agreement, improved communication, better parenting plans and a better co-parenting relationship.

5). Better for Results: Couples who mediate are more satisfied with the results because they were mutually agreed upon.

6). Dignified: Instead of the cold, traditional court process where a couple is treated like a case file or docket number, mediation is a kinder, more human process. Divorce mediators enable the parties to end their marriage while maintaining self-respect and dignity.

7). Private and Confidential: In litigation, everything submitted to the family law court is part of the public record, whereas in a private mediation session, everything is confidential. No one will know what's being discussed except the two spouses and their mediator.

8). Faster: The pace of the process is controlled by the parties, instead of being at the mercy of a lawyer's or a judge's schedule.

Regardless of whether you’re the initiator of the divorce proceedings or a reluctant husband or wife, you have a choice in which path forward you take. In other words, you and your children will benefit when you choose divorce mediation.

Source: https://www.pon.harvard.edu/daily/mediation/what-is-divorce-mediation/

https://www.equitablemediation.com/divorce-mediation