‘We are all in this together!’ | Carl's Mediation Blog

Mediation breakthrough tool – Recognition by e.g. executors, trustees, and beneficiaries, that ‘We are all in this together’. Recognition = shared generosity = fairness – which opens the door to principled negotiation, and settlement. The key that opens this door is empathetic listening, which is taught as a voice technique by Patsy Rosenberg to politicians and businessmen.

The ability to nurture this dynamic is a skill that is particularly helpful where participants and their advisors are from different cultures, e.g. when mediating an international family trust dispute.

‘As we look at our own blocks it is also very creative to empathetically notice others. This generous act can actually free our own blocks. The more we allow others to return to their natural voices the more we are empowered. Listening and focusing on others and giving them their rights can also facilitate our own survival. Recently, I have been employed to train overpowering Western leaders to be attentive and sensitive in their communication with Eastern leaders. The hard facts are that an overpowering Western style of backslapping, jovial communication is losing businesses billions of dollars as this style is obnoxious to the East. I train these very successful leaders to observe and listen to their Eastern clients and drop the habits that don’t work. If they don’t they cannot do business in the new and powerful Eastern markets.. Generosity will create their ability to survive. It seems very obvious, but forceful communication never works. Powerful expression does. What can change the world is dialogue and negotiation. … Dialogue requires generosity and generosity requires respect. If in your mind you can consider anyone you are having a dialogue with as an equal respect has a chance to thrive. Both parties have to remain present with each other and give each other the right to speak and be a generous listener. As passion rises in any dialogue, shouting and vocal pushing is a constant threat. No one can listen to shouting or pushing, you can be heard but not received. The vocal tension disturbs the ear and we switch off. It is counter-productive. Speaking quietly but not fully audibly is also very annoying to the other person. They are having to work harder than necessary. Also counter-productive is rushing, mumbling or sounding flat and boring. The key is to think about what helps to change the other person and how you would like to be spoken to. … Listening attentively is an act of survival as is speaking with your rights. … Dialogue is about joint transformation and the sharing of knowledge.’ The Right to Speak’ by Patsy Rosenberg, 2nd edition (2015), pages 106 and 107.

In mediation a claimant can use their voice and be heard. In litigation, except as a witness, they do not have a voice. Paradoxically, while a claimant may have gone to court or threatened to issue proceedings, because they are being ignored or stonewalled, the voices in the court room are not those of the parties, but of disinterested lawyers and indifferent judges. Consequently, how participants speak to each other in mediation, either directly, or through their legal representatives or the Mediator, is an opportunity to show respect by allowing the other to be heard. That can move the parties along from deadlock about their respective positions to doing a deal in their mutual interests.

The skill of allowing a participant in mediation their voice, i.e. the right to be heard, is linked to both ‘how you talk’, and to ’empathetic listening’, because to switch the dynamic from confrontation to collaboration, you must first show that person that: (i) they have been heard; and (ii) you understand their position and the underlying reasons. That is where a Mediator can add value and open a door to dialogue.

I think that these skills are essential when mediating an international family trust dispute, because the participants and their advisors are not only located in different time zones, but culturally may be from different worlds.