Most people, whether their dispute is personal or business need to be listened to. Often their point of view has never been fully acknowledged and it is very powerful to have the other party make time to listen to their counterpart’s version of events, even if they can’t agree with their viewpoint. Understanding where someone is coming from and where the anger or hurt derives, allows the parties to ultimately move on to how they can look to the future and resolve issues. Respecting and hearing the other side of the story is a necessary part of the mediation journey.

‘One that sticks in my memory is a multi-party claim in the farming sector. There was a 20-hour mediation in central London. Each claimant had a slightly different story, and each had to be heard. We achieved a result for all of them and for some, compensation. But just as importantly, a measure of closure. These were intensely personal stories involving not only the loss of livelihoods but the loss of animals that many farmers had spent years raising.’

‘The key to understanding client participation, in my opinion, is to think of it in terms of impact and influence. I have sat through countless joint meetings where all or most of the speaking is done by the professionals. I have watched those listening quietly disengage and glaze over, as they hear exactly what they were expecting to hear. On the occasions when parties also contribute, however, I have watched those who had previously glazed over lean forward, re-engage, and follow every word. It is almost inevitable that people will listen more intently to someone telling their own story, than to someone else telling it on their behalf. Most obviously, this can be because what will be said is perhaps less predictable. The rehearsing of (well-worn) legal arguments can be important in a mediation, but it is unlikely to have the same impact as someone talking about the commercial or personal effect of the dispute.’

‘As Einstein put it “If you can’t explain it simply enough, you don’t understand it well enough”. Lawyers who deeply understand their case are invariably the most impressive at mediation, possibly as a result of saying less, but saying it well. The best example of this which I ever witnessed was in a mediation some 25 years ago. An opening plenary session in a negligence case involved some short but very clear and well-judged articulation of arguments by both sets of lawyers, with the parties themselves wishing to say very little. When I joined one party in their private room after that meeting, their lead negotiator said, “I had no idea the arguments against us were so good!”. That effect has been achieved by the opposing lawyer in less than ten minutes of polite, thoughtful commentary, and it influenced that side’s entire approach to settlement.’

#mediation #tellastory #listeningtoothers