Written by ACR-GNY Board Member Richard Lutringer & originally posted [HERE]
Parties in commercial mediations often reach resolution through the help of a skilled mediator using traditional mediation tools, including an inquiry into underlying economic interests, which can “expand the pie”. In certain business disputes, however, as is often the case in family disputes, more than underlying economic interests may be involved.
When emotional issues lie beneath the surface, it may be necessary to dig deeper using a listening skill of community, employment and family mediators.
In a dispute I mediated recently among three owners of a successful media business that had been wending its way toward an acrimonious split-up, a breakthrough came when one of the owners disclosed in joint session that he felt guilty for not attending to his work over the preceding year due to his personal issues, thereby letting his partners down. The hostility in the room softened, understanding was shown by the other partners and the negotiations continued in a more friendly tone. Although issues still needed to be resolved, the company survived with its ownership structure intact.
Not every commercial dispute has a hidden emotional element. In many small business disputes, however, by overlooking the elephant of emotion, a mediator can easily miss the opportunity to assist the parties to resolve the dispute and move on with their lives.
Active listening as a therapeutic concept was first identified by psychologist Carl Rogers in the 1940’s and has since been adopted and refined by interest-based mediation. One leading scholar describes active listening as a “communication technique in which a listener decodes a verbal message, identifies the emotion being expressed, selects a word or phrase with the same meaning and emotional intensity as that conveyed by the speaker, and restates the feeling content of the message to the sender for confirmation or clarification” (Moore, The Mediation Process (2003), p. 176) .
Several modern mediation approaches emphasize the listening-reflecting dynamic of active listening. “Understanding based” mediation utilizes and expands the process with the concept of the “loop of understanding” which looks for confirmation by the party of being understood by the mediator, including feelings shown by unspoken behavior, as well as spoken words, back to the party for confirmation, and thereby also serving as a model for the other party (Friedman and Himmelstein, Challenging Conflict (2008), pp 68-76). With regard to transformational mediation, the act of reflecting back emotions after listening has been described as “one of the most powerful things that ...... mediators do to help parties make ....both empowerment and recognition shifts...”. (Bush and Folger, The Promise of Mediation (2005), p.144).
Why active listening is effective may be because it represents a true emotional connection with the party, not a "fact" inquiry. A classic small work by James Sullivan, a Catholic priest who often counsels clergy, deals with the transformational power of everyday empathetic listening on one who is emotionally troubled.(Sullivan, The Good Listener (2000)). Sullivan articulates the power of empathetic attention and understanding through the simple techniques discussed below. Although Sullivan writes about troubled clergy in a non-commercial context, at least one of the parties in a litigation with a long-time business partner is likely to be "emotionally troubled" through feelings of abandonment, disloyalty and insecurity.
Sullivan suggests the following four steps as crucial to effective listening, which can easily be adapted by a mediator, as I have briefly expanded in the paragraphs below:
1. Stepping out of your own world
When you understand what another is experiencing and feel what they are feeling, your own needs, perceptions and judgments are, for a few moments, put aside. Even though, objectively, the party’s position may be exaggerated or inappropriate, the mediator can still understand the speaker and feel the pain.
2. Entering into their world.
Seeing the world as though you are looking through another’s eyes isn’t easy, particularly because people in stressful situations may not be consciously in touch with their underlying feelings. Their body language and behavior must be “listened to” as well. Acknowledgement of tension can be reflected back by a mediator for verification by the party that their stress is understood.
3. Sensing their deepest feelings
By “naming” the deepest and most painful feelings, even if they have not mentioned those feelings specifically, the party knows that they are heard at a deep level. A mediator's responses would, of course, always be different, but may sound like the following :”You feel cheated out of your inheritance”, “You are worried about how you would earn a living outside the business ”; “You felt betrayed”; “You are feeling inadequate”, etc.
4. Give an adequate response
A genuine feeling response need only be a few words. For mediators, simply reflecting the feeling and saying, with an understanding tone of voice and an attitude of honest inquiry, “Did I get that right ?” may show empathetic understanding of their worldview without displaying a lack of neutrality. They also have the opportunity to correct and modify any misperceptions reflected. (Id, pp. 78-89).
Thich Nhat Hanh, the well-known Buddhist teacher, describes the power of compassionate listening :
“In this practice you listen with all your mindfulness and concentration in order to give someone who is suffering a chance to speak out. Even if his speech is full of condemnation, bitterness, and blame, you still listen ....If you interrupt, deny, or correct everything he says, he will have no chance to make peace....Deep listening and loving speech can...transform long-held misperceptions and suffering” ( Thich Nhat Han, Creating True Peace (2003), pp. 92-94)
Although active listening benefits from practice, it is not merely a skill or technique, like delivering a mediator’s proposal or bridging an overlap of positions. When engaging in active listening, a mediator might consider using whatever inner practice has worked for them to become present in other situations, such as a few seconds of deep breathing or silent meditation. If active listening is done by the mediator with humility and openness, a “stuck” party may feel heard and begin to open up, allowing a space to move beyond “no” and towards understanding, whether or not the outstanding issue is immediately resolved.