The following is a brief extract form the ‘Mediation Advocacy Skills’ section of my forthcoming book, the 2nd Ed of the Contentious Probate Handbook’ for the Law Society:

‘Empathetic communication – Listen to understand in order to be understood

The only way to get someone to do something is to make the other person want to do it. Remember that when dealing with people as opposed to machines, you are not dealing with creatures of logic, but with creatures of emotion, bristling with prejudices and motivated by pride and vanity. Instead of condemning your opponent, what you need to do is to try and understand them. Then you can understand why they have behaved as they did. MA.1/P.1 must put themselves into the shoes of MA.2/P.2, in order to see things as they do, i.e. each MA must understand the ‘opposing’ point of view.

Only unsatisfied needs motivate. In the hierarchy of human needs, next to ‘physical survival’ , the greatest need of a human being is ‘psychological survival’, i.e. to be understood, affirmed, validated, appreciated, and treated with respect and dignity.

‘Appreciate their point of view.  Understand it. It is very important to appreciate the way they see it. Even if you don’t agree, say that it merits serious consideration. Don’t say that they are wrong. Appreciate their self-esteem. Acknowledge that the other person has been heard. Be prepared to argue their case better than they can before you reply.’

(The late Professor Roger Fisher in a two hour conversation with the author at Harvard Law School during a research visit as a Scholar from King’s College London to Harvard University in April 2002).

When you listen to a person with empathy, you give them ‘psychological oxygen’. By affirming their vital psychological need for understanding and acknowledgment, you can then move forward, by becoming partners in jointly solving a shared problem. When you listen with empathy you open yourself up to being influenced. Being open to influence is the key to influencing others. Just as you can now see a problem through your opponent’s eyes, so can he see the same problem through your eyes. This opens the door to the creation of synergy by acknowledging, exploring and exploiting interdependence, see the ‘Interdependence dynamic’ below. Thus, when parties in dispute sincerely and deeply understand each other, they can open a hidden door to creative settlement in mediation. That is because their ‘differences’ have been transformed from being obstacles to communication and progress, into ‘stepping-stones’ to synergy. In other words, they can set themselves free from the past by becoming the joint-architects of their own future.’