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By Steven G. Mehta

For some time now, I have tried to practice the concept of being mindful or meditation before starting a mediation.  I started thinking about meditation and mediation about two years ago as a result of hearing how some people viewed it as the reason for their success.

I have frequently written about how being mindful in mediation can help resolve problems.  Recently, I saw some research in the field of marriage and family therapy that bears directly on the profession of mediation.  That research advocates the teaching of mindfulness in Marriage and Family Therapy (MFT) training and classes.

In fact, Virginia Tech is one of few universities to integrate mindfulness meditation into its MFT program curriculum, according to Eric McCollum, professor of human development and MFT program director in the National Capital Region. “Mindfulness meditation helps students improve their ability to be emotionally present in therapy sessions with clients,” he explained. “It helps beginners, who can sometimes feel overwhelmed, stop focusing on themselves and think more about others.”

This concept is one that our mediation and legal ducators should include.  MFT training is very similar to some of the concepts applied by mediation practitioners.

According to McCollum,  mindfulness meditation involves deliberately focusing one’s attention on present experience — thoughts, physical sensations, emotions — and doing one’s best to stay present with those experiences without judging them or avoiding the difficult aspects.

For novice therapists (or in our case mediators), another advantage is that mindfulness meditation helps them to switch out of problem solving into being more present, more empathetic, and more compassionate, all important aspects of the therapeutic process, said McCollum.

It is interesting to see some of the comments from students in McCollum’s program.  If we simply changed the people from therapists to mediators, the results could be quite transforming to our profession.  Here are some of the comments.

Rachel Cramer, an MFT student from Arlington, Va., explained how mindfulness meditation has helped in her interaction with clients. “Thinking back on starting out in the therapist’s chair, one of the hardest things for me was to learn to be quiet. Although I thought I understood active listening intellectually, the actual practice of listening without trying to form a response or a counter-argument or an intervention, and just to sit and take in what the other person was saying peacefully, was a huge challenge for me. I think that is where the practice of mindfulness was the most helpful to me. Just having the experience of quieting my inner cacophony in a disciplined way gave me an experience to draw on when sitting with a client.

“In a strange way,” Cramer continued, “mindfulness practice helped me get to the point where I could be most quiet and centered when hearing the most difficult things. Without the exposure to mindfulness practice in my first techniques class, I’m not sure I could really have learned to ‘sit with someone’s pain’ just as a witness, without trying to fix the unfixable. This experience also shaped my use of mindfulness, or at least quiet and measured breathing, as a way to help clients slow their own processes down. Slowing them down made a lot more sense to me after I had experienced the value of this myself.”

In McCollum’s program, mindfulness meditation begins in the first year of clinical training. As a course requirement (but not graded), students keep weekly journals which are read by the instructors over the course of the semester and then returned to them.

Thirteen students gave permission for McCollum to use their journals for a research paper.  According to the paper, several themes arose from these journals.  Again, as a mediation practitioner, these themes were directly  relevant to mediation.

The study and research found that, just as with Cramer, mindfulness helped students be present in their sessions.  This was commonly referred to as being “centered.” The students felt that they were calmer in general and specifically in their therapy sessions. Some of them used brief periods of formal practice to allow themselves to set aside thoughts and feelings associated with the previous session or with their lives outside of the clinic and focus their attention on what was happening in the current client session.

Others results were that the clients appreciated the student’s enhanced “presence.” Not surprisingly, the students reported explicitly experiencing a sense of compassion and acceptance. As they came to accept themselves in the therapist role, they were better able to accept their clients.

“Our findings suggest that mindfulness meditation may be a useful addition to clinical training,” said McCollum.  Interestingly, the study also interviewed actual practitioners after they commenced their careers.  Here is what one had to say:

“When I first thought back about the mindfulness experience, I wasn’t sure how much it still applied. I thought, ‘I don’t practice daily, and I don’t use it as often as I should.’ Then I realized that I was wrong. I do practice daily and I do use the experience often. However, it’s no longer a conscience practice. It’s something I’ve incorporated into who I am and how I deal with the struggles and frustrations I face every day. When I look back and who I was before the mindfulness experience, I realize how I ‘became’ the stress I experience. I would think about how stress had affected me in the past and how it would affect my future. I would get more frustrated and more irritated… Now, while I experience as much stress as I did before, I am more aware of my present experience and the stress seems outside of who I am. I worry less about how I have experienced it in the past and how it will impact my future. I am also not negative about the experience. I’m aware of it, I notice it, and for the most part, I’m able to let it go.”

This practice could and should be something that can be incorporated into every mediation training program. Mediation practitioners, just as therapists, undergo a lot of stress.  Just yesterday, one lawyer thought that my role as a mediator was both that of a facilitator, negotiator, and therapist.

So at the end of this, I would like to call all mediation and legal practitioners and trainers to consider incorporating this concept into their daily lives and their practice.  I have seen it work in my practice, and from direct research, it appears to have worked in the therapy setting.  Of course, additional research from the client’s perspective might be helpful.  But why not just take a moment and think about it.

Journal Reference:

Eric McCollum et al. Using Mindfulness Meditation to Teach Beginning Therapists Therapeutic Presence: A Qualitative StudyJournal of Marital and Family Therapy, (in press); See also, ScienceDaily. Retrieved April 9, 2010, from http://www.sciencedaily.com/releases/2010/04/100407144705.htm

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By Steven G. MehtaSteve Mehta

 

There is not a day where you cannot see some type of negative advertisement; and less and less positive political advertisements.  But how do those negative and positive ads really fare in the real world.  The research shows that negative and positive messages can have a substantial impact on the receiver of the message.  This research can also be applied into the everyday negotiations, during mediations, or when presenting arguments to a third party such as a judge or jury.

Most people agree that the ability to maintain trust is a critical part of the negotiation process.  Many people believe that the more that you are trusted, the more likely another person will accept your message.   Recent research, however, has shed some new light on this concept. 

Recently, researcher  Gideon Keren in the Journal of Organizational Behavior and Human Decision Processes tested how negative messages and positive messages affected trust and willingness to accept or buy a statement from one person.   One study, for example, analyzed the same factual message regarding a product, but framed it as either positive (75% lean meat) or negative (25% fat meat) to determine if one message over another was more trustworthy or whether persons were willing to buy the product more based on the type of message.  The study found that people were more willing to buy the meat when framed positively, but trusted the salesperson more when the message was framed negatively.  Strangely, a sizeable percentage of subjects also were willing to buy from the salesperson with the positive message despite the fact that they trusted the person with the negative message more. The phenomenon was called “trust-choice incompatibility.” Even when this study was repeated in different environments, the results remained similar. 

Other research demonstrates that when a person negatively attacks another person or his or her product, the person making the attack is most affected.  The study found that people are less likely to trust the person making the negative comment or message except in circumstances where there is a limited ability to process the information or there is a short period of time. 

Interestingly, much like the judicial process, according to John Geer, PhD, a political scientist at Vanderbilt University, “Politics is a one-day sale.”   In law, just as in politics, the advertisement or message must make a strong impression – and do it fast!  According to a study conducted by Ted Brader, PhD, a political scientist from the University of Michigan, fear ads or negative ads involving fear were the only ones that persuaded people to change their minds.  However, such ads would fail if there was not an environment that would foster the fear.

In another study conducted of every presidential ad between 1960 and 2000, Geer found that negative ads were much more specific because the negative ads “demand evidence.”  Geer further stated, “People are willing to believe the positive messages without evidence.”  The same is not true of negative ads.  Nevertheless, Geer also noted that negative ads can easily backfire.  In fact, one study found that although negative ads could influence some voters to make a favorable change in their position, it also could disenfranchise an equal number of voters in the opposite direction.

 Unfortunately, politics is not the only place where negative messages are made regularly.  In the legal environment, it is difficult to go a day without some type of negative message being communicated in court or a hearing.  Thus, it is important to be able to apply some of this research to the legal environment.

One way this research can be applied in law and negotiations is to make sure to establish trust first, and then make an attempt to persuade.  Thus, provide negative information or weaknesses in your case early on in order to establish trust.  Then, once trust has been established, focus on the positive aspects of your case.  According to the research, this approach has the best ability to minimize the “trust-choice incompatibility.”

Second, focus on what you are trying to accomplish with the message you are communicating.  Are you trying to persuade or are you trying to develop trust?  Are you trying to change the other person’s mind?

It is important to note that lawyers are under a significant time constraint to present their position; whether it is to the judge, the jury or the mediator.  Just as in politics, they have one day (and sometimes less) in which to persuade both the other side and the neutrals of the validity of their position.  As such, sometimes it is difficult to avoid attacking the other side’s case.  Nevertheless, when trying to convince third parties such as judges, or neutrals, make sure that you focus on the strengths of your case and not necessarily the weaknesses in the other party’s case.  For example, instead of claiming that the other side cannot prove causation, you might reframe the issue as you having a strong defense based on causation.  If, however, you must attack the other side’s case, reframe the attack first by identifying a small weakness in your case, and then attack the other’s position.  By doing so, as shown in the research, you can establish trust as a credible source of information, which could assist you in delivering your negative message about the other side.

Further, as noted above, if you have to go negative, then you must be precise and support your statements with evidence.  This can be achieved by the use of demonstrative evidence such as documents, depositions, photographs or video.  For example, in one personal injury case the defense accused the plaintiff of making up some or all of her complaints of injury.  The defense then proceeded to provide the video evidence showing the truth of their statements.  That negative ad or message had a significant impact on both the neutral and the party who was being attacked. 

In addition, the negative message forced the plaintiff to change her position.  This was partly based on the fact that the negative message targeted the fear of losing in the plaintiff.  By providing the specific information, the defense achieved the effect of creating doubt in the plaintiff’s mind as to the outcome of the case. If, however, there was no specific evidence of such allegations, then the plaintiff would not be in the right environment to understand the full significance of the message.

Negative ads or messages can be very powerful while at the same time very dangerous.  Even in today’s political environment, the politicians may not fully understand how the advertisements are affecting their audience.  It is important, however, to make sure that you focus on your message first, and then consider what effect you desire to achieve by going negative.  But remember, just as in politics, one who lives by the sword can also die by the sword.

Modified from my prior article in November, 2008 Los Angeles Daily Journal

 

By Steven G. MehtaSteve Mehta

Recently, at the ABA convention for alternative dispute resolution, there was a discussion of the secrets to a mediator’s success.  This reminded me that I had previously written an article on this issue in the Southern California Mediation Association Magazine citing to some of the research presented at the ABA.  After having reviewed the article, the suggestions in that article remain valid today.  As such, I am including that article for discussion.  In another article, I will address some of  the other research on this issue that arose out of the ABA conference.

Many people have suggested that once a mediator learns negotiation techniques that can help a party to make movements, such as the mediator’s proposal, that is all that is necessary to be a successful mediator.  Many attorneys have also told me that they don’t feel the mediators should spend time “kibitzing” or “schmoozing” with the parties and that the mediation should just commence.  Unfortunately, I believe that these people have missed a crucial understanding of the mediation process and what needs to be accomplished before a mediator can begin to effectively guide the parties to a resolution.  In my opinion, there are three things that all mediators must be able to do, regardless of the type of mediation, in order to be successful at mediation.  Those three things are the ability to develop trust and rapport with the parties, the ability to arrive at creative solutions and persistence.

 I have always believed that the secret to a successful mediation is not the number of negotiation tools that the mediator uses, but instead something much more personal in nature. The secret to being a successful mediator lies inside the person.  In fact, I have always acted on the assumption that my success as a mediator has not been from my knowledge of specific negotiating techniques; but instead, it has been based upon my ability to connect with the parties and the attorneys and to build a meaningful relationship in a short period of time.  This belief was affirmed in an article in the Harvard Law School Negotiations Journal entitled, “The Secrets of Successful Mediators” by Professor Steven Goldberg. 

 Based on a study of thirty (30) experienced and successful mediators, Professor Goldberg concluded that the secret to being a successful mediator was their ability to develop a rapport and trust with the participants.  The study asked the mediators to anonymously provide the reasons that they believed they were successful in mediation.  Uniformly, the mediators responded that the secret to their success in mediation was the ability to develop and maintain rapport and trust.  One participant anonymously wrote: 

 “I think the greatest and most useful skill I have is the ability to gain people’s trust.  They come to believe that I will not lie or mislead them and that I am interested in reaching a settlement that works for them.”

 Once we understand that trust and rapport is critical, we have to understand why it is such a critical function.  According to the study by Professor Goldberg, the establishment of a rapport “encourages the parties to communicate more fully with the mediator, often providing her with the information she needs to help the parties craft a settlement.”  Professor Goldberg cited to additional research in this area stating that “credibility-enhancing activities….serve a double useful purpose:  not only do such activities give the mediators the credibility to offer suggestions designed to resolve the dispute, they may also create a climate where the parties trust the mediator, allowing the mediator to attempt relationship building between the parties…”  However, these are not only reasons why rapport and trust are so crucial to effective mediators.  Without gaining rapport and developing a relationship with the parties, the mediator will not be allowed into the inner world of the client.  Instead, the mediator will be seen as a well-intentioned outsider who is trying to help.  Often times, the parties will not allow the true reasons, solutions or problems to arise in the mediation until they feel comfortable that the mediator is “one of them.”  This is not to say that the mediator has to become a party to the action.  Instead, it does mean that the participants must feel as if the mediator has become one of them and that the mediator has their best interests at heart.  Without this type of trust, regardless of the negotiators acumen, the mediator will be destined to fail in the times when the parties need him or her most:  the difficult cases.

 In my own experience, I have found that working with the parties to gain their trust has paid numerous dividends.  In one mediation, I had worked extensively to develop the trust and confidence of the parties.  The defendant had been leery about the mediation and didn’t want to be there.  However, after several hours of showing that I cared about what would happen her if the case didn’t settle, she opened up to me and “spilled” her concerns about settlement.  Based upon those concerns we were able to fashion a reasonable settlement.  However, even at the end, she asked her attorney to go outside and then asked me whether it was a “fair” deal.  Without having built the trust with the client, that settlement may not have occurred

 But how do you create rapport and trust?  You can’t just walk up and tell a person to believe in you.  The fact is, as our parents have told us when we were kids, “actions speak louder than words.”  If our words say please trust me, and our actions don’t, people will trust the actions.

 First, and foremost, a mediator needs to care about the parties and their concerns.  Although a mediator does not need to make the client’s problems his or hers, the mediator certainly needs to communicate both physically and verbally that he or she cares about the other person.  Without this, rapport will never develop. 

 Unfortunately, the ability to care about someone cannot be taught.  Fortunately, there are tools that can help make someone feel comfortable with you as a mediator.  Some of these techniques are used by mediators on a regular basis such as listening carefully to each party’s needs and concerns; acknowledging the legitimacy of some of those concerns; and demonstrating a willingness to try to help with those concerns.

 The above-mentioned skills to develop trust and rapport are well accepted and are often taught in mediation courses.  Although these approaches are necessary and important, these skills alone do not fully allow a mediator to develop the personal rapport that is necessary.  Frequently, the rapport is built not based upon your ability to be empathetic but your ability to demonstrate to the participants that you’re a human being that is similar to them.  Researchers have found that when people believe that they are among friends and among people that are similar to them, they are more likely to accede to requests or to be convinced to change a particular position.  As such, there are many ways to develop personal rapport with individuals in a mediation.  These include the following:

 Identifying common personal experiences;

  • Discussing things that are pleasant;
  • Talking about an individual’s children;
  • Demonstrating common values;
  • Affirming the other person as a human being;
  • Demonstrating sincerity;
  • Demonstrating that you care about the person’s feelings;
  • Injecting humor into the proceedings; and
  • Your willingness to share personal details about yourself.

 These concepts can be applied throughout the mediation.  However, it is very important to establish many of these areas of rapport early in the mediation and then to enforce those areas throughout the process. 

 Professor Goldberg’s research also indicated that although establishing rapport is probably the most critical factor in any successful mediation, nearly half of the mediators also stated that one of the keys to their success was their ability to “generate  previously unconsidered or insufficiently considered settlement ideas.”  In other words, their creativity was important.  Any person can convey numbers back and forth; and anyone can help resolve a dispute when the parties were already willing to settle.  But not anyone can settle the case where the parties want to settle, but just don’t know how without losing face.  In those cases, creativity is sometimes the only thing preventing the parties from leaving the mediation setting.

 One way to develop creativity is to focus on the underlying issues that are motivating the participants.  Part of creativity also requires the mediator to let go of his or her fears of rejection.  If one idea fails, the next one won’t.  As exemplified by Thomas Edison, it took 9,999 failures to come up with the one success – the light bulb.

 I often find creativity and the ability to think outside the box as being a critical tool.  On one occasion, the parties were deadlocked in a case where each side accused the other of stealing personal property.  I made a suggestion that I knew was going to be unworkable.  The suggestion required each side to inspect the other’s property and for each item found that was on a list of stolen items, the party in possession of the property would pay a $1,000 to the other, regardless of the cost.  Although the proposal was unacceptable, it kept the parties talking and eventually led to the parties agreeing to the value of each item.  That small agreement then paved the way for the ultimate settlement once the parties realized that they were going to spend more on litigation than the items were collectively worth.  Without the crazy proposed solution, there would have been no solution. 

 It is also important to note that creativity can be used not only to develop ideas for settlement, but it an also be used to identify areas where you can build rapport with the individuals.

 Finally, the third most important characteristic of a successful mediator is the ability to be patient and tenacious.  Professor Goldberg’s research reiterated the concept that successful mediators do not give up hope even when the participants have done so. Frequently, for successful mediators, the response “no deal” serves as a motivator for the mediator.  It makes the mediator want to find a solution even more.

 As noted by Professor Goldberg, some mediation skills cannot be taught.  For example, you cannot teach someone to care or to be persistent.  However, other skills can be taught.  For example, active listening skills can be taught.  As such, it is important for mediation educators to teach more of the skills related to the three essential traits.

 Although these three factors have been found to be critical skills for all mediators, it is not to say that the other skills, such as the ability to move the parties closer together, negotiating techniques, or the ability to maintain the parties’ focus are not also important.  These skills, taken with the essential traits can help a mediator develop a significant tool box that can be used in any mediation.  Negotiating skills, along with the ability to develop rapport and be patient and persistent, can make the ordinary mediator into the superhero of mediation.

Originally published in the SCMA Magazine, September, 2005 by Steven G. Mehta

By Steven G. MehtaSteve Mehta

Recently, after a very stressful mediation, one of the attorneys came up to me and told me that he didn’t know how I was able to handle all that stress on a daily basis.  He then asked me how I survived.  After answering his question, it got me thinking that although we take it for granted there are a lot of stressors that can affect us during mediation and negotiations. 

In that mediation, the parties were extremely hostile to each other, the case involved the death of a person and a claim for wrongful death and tough liability issues.  There was a lot at stake for both sides and the expenses were mounting daily.  To top it off, there was a lot of pressure to settle the case – each side wanting the best possible deal.

The attorney’s question about how to address such stress was an important one.  In the litigation context, there are often mediations that have many of the same issues.  These mediations can be extremely stressful for the mediator, the attorney and the clients.  Repeated exposure to these kinds of stress conditions can not be good for anyone.  Indeed, studies have clearly shown that repeated exposure to high stress can decrease a person’s health.

Unfortunately, not being exposed to these stressors is probably not an option for a mediator that specializes in highly complex and emotional cases; nor is it generally feasible for attorneys in this arena of litigation.  Needless to say, it becomes increasingly important to find ways to manage the stress factors.  Fortunately for me, I have developed strategies over the years that have helped to manage the daily stress of difficult mediations.

breathe

breathe

These strategies can be useful for anyone who is in mediation or is facing a difficult negotiation.

First, take a deep breath.  Now take another.  And another.  Yes, breathing deeply is a powerful force and can wash away the worries of most cases.  Try to focus for five minutes on your breathing.  Many times in mediation when the stress is at its highest, it sometimes help to focus on breathing.  The rhythmic nature of breathing can slow down the pace and give you time to think clearly. 

When breathing in front of people, you don’t need to breathe as deeply as you would if you were in private.  But you can still focus on your breath.  Simply take deep silent breaths.  I tried this technique in a room full of people for ten minutes and no one knew that I was conducting deep breathing exercises.

Second, be mindful of your situation. In a recent article, entitled The Raisin and Negotiator, we talked about the fact that simply eating and appreciating a raisin (or something else like chocolate) before a mediation can help to manage the stress and aggressive behavior.  In fact, people who practiced being mindful before experiencing stressful encounters reacted better than people who didn’t practice being mindful.

Third, take a walk if you have to.  If you can, find a way to take a walk in nature.  Researchers at the University of Michigan have found that taking walks in the park enhanced cognitive performance and decreased stress compared to simply taking a walk in an urban environment.  For me that happens to be a highlight of one of my offices.  The office is surrounded by trees, a golf course, and nature.  It is easy to take a short walk and feel connected to nature. 

You might be saying, “I don’t have time to take a 45 minute walk in the middle of a negotiation or mediation.  Well you don’t need 45 minutes, although that might be nice.  5 minutes will do.  You can do what I call, “Power Pleasure Walking.”  You may have heard of power walking, which allows you to walk quickly and burn calories quickly.  Well Power Pleasure Walking allows you to gain the most stress relief out of walking, even in short periods such as five minutes. 

In order to Power Pleasure Walk, you must simply start walking at any pace you deem comfortable.  Look at your pace and the rhythmic nature of your pace.  Now add in breathing to your walk.  Take a deep breathe and then let it out, matching the pace of your walk with one breathe in for every two to four steps, and then one breathe out for the same number of steps. Then after about a minute of doing the walking and breathing at the same time, increase the ratio of breathing to steps to one breathe every four to six steps.  If, however, you don’t like that ratio, do something that feels comfortable to you, just making sure the breath in has the same number of steps as the breath out.  After at least five minutes, you will notice that everything becomes clearer and that it doesn’t seem so bad.  I have even used this technique sometimes in between going from one room to another during mediation. 

But what if it is not convenient to take that five minute walk.  Well studies have shown that simply looking at pictures of nature instead of urban environments can help to decrease stress and make you think clearer – in other words clear your head.  So load up all those pictures of Yosemite, the ocean, and Hawaii on your computer and prepare to unleash those pictures when the stressful moment requires it.

Another technique is to give yourself a timeout. Now that I think about it, I don’t know why as a child I didn’t like timeouts.  Now, I love them.  Five minutes to yourself to do nothing.  How luxurious is that?  If that stressful situation arises and you are about to respond, think about taking that 5 minute time out before you respond.  I know that this technique has saved my marriage countless times.  It has also helped me to avoid saying something that I might not want to during a mediation.

This next technique inadvertently comes from a friend of mine who always changes the topic when a stressful issue comes up in the discussion.  She always seems so comfortable and stress free. So I tried it.  In one case, I was mediating a case and addressing a very difficult and emotional issue relating to the merits of the case. When I was involved in a discussion that was too stressful for the person hearing it, I simply changed the topic.  You could immediately see the tension decrease in the room.  Later, when the tension had subsided, and when the party was ready, I raised the tough issue in another way.

One technique that I use at any time, during any stressful situation, is to simply remind myself (internally) that “it is not about me; it is about them and their worries; they are not targeting it at me.”  For attorneys, you might say something like “I didn’t create this mess; I am just here to help them out of this mess.  I am not the cause, I am the solution.”

One thing that you can do to remind yourself of your own private mantra is to create a signal that only you know and that is inconspicuous.  If you remember in the movie, It’s a Wonderful Life, one of the characters always tied a string around his finger to remind him to do something.  You could do something similar.  For example, you might put a small amount of pressure on your gums by your teeth biting down on your gum.  Another reminder could be to pinch your toes together in your shoes.  A third option is to tighten your abdominal muscles (this one could have other physical fitness benefits also).  Find your own personal reminder and use it when the going gets tough.

Stress management during crisis is an important life skill that can be used in any stressful situation.  For mediators and attorneys that have to face high stress situations on a daily basis, these skills could very well be life saving.

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