Above the entrance to the Oracle at Delphi there is a Greek incription – ‘Γνῶθι σαυτόν’ (‘gnōthi sauton’). It means, ‘Know thyself!’ I am currently reading through 9 books on negotiation as preparation for an online talk I am giving to members of the SCMA worldwide at 4pm GMT on 24 October 2024, entitled – ‘Mediation Advocacy in Trust & Estate Disputes.’ Today I have started to read ‘Getting to Yes With Yourself’ by William Ury (2015). He describes the book as the missing ‘prequel’ to ‘Getting to Yes.’ On p.6 he sets out 6 challenges. The 1st is that instead of ‘judging yourself’, do the opposite & ‘listen’ empathetically to yourself for ‘underlying needs’. So, ask yourself – ‘what do I really want/need & why?’ – why am I doing this & putting myself through this & for what?, i.e. what is this dispute/claim really all about? In contentious probate disputes, there is often a subliminal ‘driver’ which is not just money. It may for example be a feeling of having been taken advantage of my elder sibling who is a bully, i.e. a deep-seated feeling of ‘injustice’ which empowers a party to retaliate through litigation and thereby obtain some form of justice/redress & to inflict pain. As any Barrister who is worth their salt will tell you, the ‘Law’ and ‘Justice’ are just about on nodding terms. Litigation is a minefield. So, this may be a costly mistake which can exceed the value of a disputed estate/equity. Thus a mediator must ‘listen’. There are 3 levels of listening, which are discussed in ‘Practical Mediation’, by Jonathan Dingle and John Sephton (2021), at pp. 99, 100 & 102. ‘By way of a touchstone, the authors suggest that a maxim when mediating is: “listen to understand, not to respond.” Such an approach, which runs counter to the images and personas of fast-talking lawyers or commentators, leads to real richness of process. It opens up opportunities to probe, to précis, to reflect and to reframe. Each of these techniques requires consideration of questioning. … Reflective listening is an advanced way of listening and responding to another person that improves mutual understanding and trust. It is an essential skill for mediators and participants alike, as it enables the listener to receive and accurately interpret the speaker’s message, and then provide an appropriate response. The response is an integral part of the listening process and can be critical to the success of the … mediation. Among its benefits, reflective listening:
·       builds trust and respect,
·       enables the disputants to release their emotions,
·       reduces tensions,
·       encourages the surfacing of information, and
·       create a safe environment that is conducive to collaborated problem-solving.
Though useful for everyone involved in the conflict, the ability and willingness to listen reflectively is often what sets the mediator apart from others involved in the conflict.’

The three levels of listening are:

‘Listening at level 1 – This is listening at the other person’s level and is really all about self, not the other person and as such, in a mediation, it can be disastrous. Signs that the listener is at level 1 include:

• Asking for more facts such as “how many?” – “when?” – “Who?” – “What’s the history?” When the participant hasn’t mentioned them.
• Noticing an inner dialogue that results in you asking yourself such questions as:
• “What can I ask next?”
• “Was that a good enough question?”
• Wanting to give advice; and
• Talking about you with “I” and “Me.”

Listening at level 2 – Here the listener and the other person are as one in an absorbing and deeply focused discussion that is characterized by:

• Rapport with body language, voice and energy levels matched.
• A flowing conversation, yet with the other person doing most of the talking.
• The listener is picking up on language, skillful and short questions are asked concentrated on the other’s agenda.
• The listener is summarizing, reflecting and clarifying in order to extend the other’s thinking.
• The listener hears what is not being said, as well as what is and is listening for underlying meanings.

Effective and valuable dialogue takes place at this level. Mediators can certainly regard level 2 listening as their default level.

Listening at level 3 – At level 3 the listener becomes more aware of:

• Emotion.
• What risks might be taken in the conversation.
• What are the other persons underlying choices and what is really at stake.
• The listener trusts his or her intuition that there may be an emotional or intellectual connection with the other person.

Level 3 is a moment of real connection that most people seldom achieve in normal everyday conversations.

By way of a touchstone, the authors suggest that a maxim when mediating is: “listen to understand, not to respond.” Such an approach, which runs counter to the images and personas of fast-talking lawyers or commentators, leads to real richness of process. It opens up opportunities to probe, to précis, to reflect and to reframe. Each of these techniques requires consideration of questioning. … Reflective listening is an advanced way of listening and responding to another person that improves mutual understanding and trust. It is an essential skill for mediators and participants alike, as it enables the listener to receive and accurately interpret the speaker’s message, and then provide an appropriate response. The response is an integral part of the listening process and can be critical to the success of the negotiation or mediation. Among its benefits, reflective listening:

• builds trust and respect,
• enables the disputants to release their emotions,
• reduces tensions,
• encourages the surfacing of information, and
• creates a safe environment that is conducive to collaborative problem-solving.

Though useful for everyone involved in the conflict, the ability and willingness to listen reflectively is often what sets the mediator apart from others involved in the conflict.’ (‘Practical Mediation’, by Jonathan Dingle and John Sephton (2021), The Society of Mediators, pages 99, 100, and 102).