MEDIATION THAT WORKS, PART II: CAPTURE THE CONFIDENCE OF THE PARTY OPPOSITE

November 14, 2012 § Leave a comment

This is Part II in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

CAPTURE THE CONFIDENCE OF THE PARTY OPPOSITE

Daniel Yankelovich says, in The Magic of Dialogue: Transforming Conflict into Cooperation: “There is no greater obstacle to dialog than mistrust.” Litigation is laced with mistrust. In order for us to be effective for our client in mediation, we must focus on the party opposite and capture their attention and confidence. It is only after that party has deemed us to be trustworthy and rational that we can begin to effectively combat the mistrust that the parties have built up for each other, disclosed or undisclosed.

One way to develop this rapport is to reiterate the goodwill with which you and your client have approached the mediation. Remind party opposite that there is a mutuality of purpose between them, and that purpose is the successful resolution of a joint problem. Encourage them to listen to each other, and listen to each other empathically. Remind everyone that people are rarely the demons that they may seem.

One of the simplest ways to capture the attention and confidence of another is to demonstrate a genuine interest in him/her. It is refreshing for a party to hear that while in the courtroom you will come on like a tiger, mediation is the place where we can all be willing to relax and explore options that will not be available at trial. I always like to remind my client and party opposite that you can never predict what a trial judge or jury may do, and mediation is the last best opportunity to take control of their future. While they may not get everything they want in mediation, they surely will not get everything they want as the result of a trial.

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