Curiosity & Patience - Keys to Productive Mediations

There are 2 critical characteristics of a successful mediator – curiosity and patience. Mediations are successful when they are productive, i.e., they produce an outcome that allows the parties to move on.

One of the most difficult challenges a mediator faces is engaging with parties and their lawyers and doing so with an open mind and a willingness to listen and to learn. Imagine the far-ranging problems created by a mediator unable or unwilling to let go of his vision of how he believes things ought to be. The challenge in every mediation is to avoid the temptation to jump to persuasion too soon and, instead, patiently, thoughtfully and impartially engage (i.e., be curious) with a party to understand their point of view and make clear your willingness to think hard on their point of view. It is that restraint and self-awareness that exponentially increases the odds of a successful, productive mediation.

How do we use mediation to turn what is essentially a zero-sum game (a lawsuit) into a productive disagreement? First, it is important to acknowledge that most litigants (and not an insignificant number of lawyers) would rather avoid talking about the controversy because they cannot confidently imagine an outcome that does not result only in a winner and a loser. Rather than considering both supporting and opposing views in an impartial manner, the process devolves into scoring points by finding flaws in the other side’s arguments.

It is always easier to talk to someone with whom we agree. When we disagree, we inevitably start with assumptions about the other side. And all too often, we assume that we know what is going on in someone else’s head and, further, we assume the other side does not have an honest argument to support their position. Take for example mediations that begin with lawyers making what they describe as opening statements. Unfortunately, but typically, they begin by telling the other party that it is the only opportunity they will have to talk directly to them and that they should not take offense, because no offense is intended but…they have no case, they cannot win in the court room and if they do not surrender, they may be liable for attorney’s fees. I think a better approach is to express interest in learning more about the other side’s point of view and express a willingness to explain one’s own point of view.

When we are mired in a dispute, we tend to paint with a broad brush and create a cartoon of what we imagine to be the other side’s thinking. We design the mental sketch to prove to them that they are wrong (and that we are right.) We fail to acknowledge the almost universal complaint that the other side will not listen to us, that they are not receptive to consider our point of view. As a result, the parties feel trapped in a bubble of isolation with no incentive to listen because no one is willing to listen to them.

The magic bullet to burst the isolation bubble is allowing that you may not have all the answers and that being competently curious is not a sign of weakness.