• Adam Halper

Mediator’s ToolBox: How We Approach Conflict vs. How We Should

There came a moment when I began to listen to the sound of people’s voices as much as listened to what they were saying. That’s not right. I had always heard how people said things. What I mean to say is that after a discussion, what impressed me, what stayed with me long after we spoke, was how people made their points.

I’m a mediator and I speak with people constantly about conflicts and how to resolve them. I first noticed how much attention I was paying during the joint session of a case I was mediating -- where everyone is together in the same room. When one side spoke, they were loud, aggressive, demanding, accusatory. After a time, what I heard was the meter, tone and timbre above all else. We were at the end of a tough day and a final agreement, within reach, was proving elusive. One attorney slammed his hand repeatedly on the table where we were sitting. As he did it, I remember thinking that if he kept it up just a bit longer, we could count time with it….

1...2...3...I’m right, you’re wrong…

1...2...3...I’ll win, you’ll lose…

1...2...3...The facts speak for themselves…

...The conflict waltz.

This is how people argue, generally. They assemble their points and they throw them at you like darts. You listen, but only so that you may respond with greater or equal strength. You listen to defend yourself. You listen in order to counter, to jab, to uppercut. You modulate depending on the moment. In public you are likely to be measured. In private, there’s no volume control at all. During an argument, if you ask any questions at all, it is to serve the purpose of creating a trap for your adversary. Without even knowing it, you lead them (asking questions that suggest an answer like yes or no). The other side doesn’t back down. As you hurl points back and forth, you get angrier that they do not understand. You have logic, reason and all evidence on your side. Why don’t they get it?

What I have learned as a mediator is that the above is a very poor way of convincing anyone of anything. In the dance I describe, there is only the argument and it is tiresome for everyone.

Think about the last argument you had with your significant other; your parent; your adult (or adolescent) child. What was it about it?

I have never met you. The molecules of electricity that we are sharing right now, through your phone, will be different in just a moment. It is likely that we will never meet. Still, I will take a guess and say that your last argument with the person in your mind right now, was very similar to the one before it; and the one before that. The spark is often meaningless. The fight isn’t about leaving a towel on the floor it’s about someone else constantly having to pick it up and feeling put upon. Spending time surfing the internet means someone else has to think about bills, social obligations and responsibility. One person in a marriage sees an impulsive spend as a reward. The other sees it as irresponsible.

Sound familiar? One person is getting what they want - they have taken a moment to give expression to their needs. The other is not having their needs met. Do either one of you ever begin the conversation by saying, “when this happens, I feel like my needs are not being met? It hurts and creates anxiety, tension and makes me feel…,” pick one; (1) disrespected, (2) distant, (3) unsafe, (4) unloved.

Notably, I’ve never had a mediation begin like this - with either a party or an attorney saying this. These sentiments, if at all, get expressed later in the day if everything is going well and people feel safe enough to express them, generally in private session with me.

I have noticed though, that some of the strongest counsel and the most self-possessed clients get to this place, in an appropriate manner, much more quickly than others. Instead of having the same fight this is what they do.

Instead of yelling or raising their voice to emphasize a point, or becoming reactive when the other side does, they offer their arguments in a conversational and measured tone.

Result: The other side often responds by mirroring the same tone.

Instead of throwing emotionally-charged darts at the other side, they are careful not to let things get personal. They don’t lay blame. They recite what has happened and what has led them and their client to this point, to this conflict. They do not attribute motivations or feelings to the other side.

Result: The other side mirrors this behavior again and we get to a discussion about what is really happening in a conflict more quickly.

Instead of speaking constantly they listen. They listen carefully. The best of them ask questions. This is mediation and an opportunity to share information. They seek to understand where the other side is coming from.

Result: The other side is heard, feels heard and is more likely to listen, themselves.

Instead of being content to fight on positions (what), they discuss their interests (why) and ask the other side to respond similarly. They offer a safe space to have an argument, all the while, being on one side of it and having a client to protect and defend.

Result: The other side is edified. They understand. They may take that into account and respond appropriately.

Instead of using emotional or theatrical behavior, they remain... themselves. Most attorneys I know are thoughtful, intelligent and interesting people. Most people I know are thoughtful, intelligent and interesting. All of us live in the world of ideas. In argument, a good attorney will project that they still live in the world of ideas. They are confident, not uncontrolled.

Result: When one side sees that the other is not interested in putting on a show, they react in a like manner. If they were going to put on a show themselves, think table slamming, they think again.

Instead of listening simply to respond, they listen to understand. They summarize the other side’s position to confirm they have it right and then they respond. They don’t belabor points, they stop when the conversation becomes unproductive. They note this and suggest a different avenue for discussion.

Result: The other side, happy to not to be wasting their time, follows new avenues and explores new ways to come to resolution.

Instead of taking up as much air time as possible, they allow everyone to speak. They contribute to the narrative, they don’t feel the need to control it. They recognize that they have a part, maybe the most persuasive one, but they allow room for others to persuade themselves.

Result: Inevitably, their position seems like the more rational and well-reasoned one. It doesn't mean they win or lose, it means they were a productive member of a challenging conversation regardless of the outcome.

This is their meter. As much as law, facts and arguments, this is what stays with me after a mediation session closes. Think about the next argument you have. What meter have you used before. Did it work?

What meter will you try now?

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