1st – Stop shouting at each other!
2nd – Listen.
3rd – Think.
4th – Talk to each other.
‘3RD PRINCIPLE – 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 MA2/P2, what you need to do is to try and understand them. Then, you can understand why they have behaved as they did. As MA1/P1, you must put yourself into the shoes of MA2/P2, in order to see things as they do, i.e. each MA must understand the ‘opposing’ point of view through the lens of the other MA/P. Since only unsatisfied needs can motivate, lower-level needs must be satisfied before higher-level needs can become motivators (see further, Maslow, AH (2022) A Theory of Human Motivation, Wilder Publications).
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 in his study 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 acknowledgement, 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 the other P’s eyes, so can P2 see the problem through P1’s eyes. This opens the door to the creation of synergy by acknowledging, exploring and exploiting the interdependence paradigm, see ‘Hidden value’ above. Thus, when parties in dispute sincerely and deeply understand each other, then 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, the MAs can help their lay clients to set themselves free from the past, by working together to bring about a better future.’
[Extract about Mediation Advocacy from the 2nd Edition of the Contentious Probate Handbook (2025)].
The 2nd Edition of the ‘Contentious Probate Handbook’, is published in print by the Law Society of England and Wales. The Law is stated as at 1 September 2024. You can order the book using one of the following links:
– https://www.wildy.com/isbn/9781784462345/contentious-probate-handbook-practice-and-precedents-paperback-38-cd-rom-law-society-publishing. NB Wildy’s deliver worldwide.
– https://www.amazon.co.uk/Contentious-Probate-Handbook-Practice-Precedents/dp/1784462349
– https://bookshop.lawsociety.org.uk/p/contentious-probate-hand-2nd-edition-paperback
My next live Zoom webinar to be presented to members of the Standing Conference of Mediation Advocates worldwide in 2025 is entitled ‘Mediation Advocacy in the Tax-Efficient Settlement of Inheritance Act, Beneficial Interest & Proprietary Estoppel Claims.’
This is provisionally scheduled for the afternoon of Thursday 20 November 2025.
The working title of my next book is ‘Mediation of International Cultural Heritage Disputes – Anachronism, Orientalism, Culture, Ethics & Law’ – See the ‘International Cultural Heritage Disputes’ page at www.carlislam.co.uk
In August 2026 I am also planning to launch a YouTube Channel – ‘Art and Civilization.’ See www.artandcivilization.tv.