“Perfect planning prevents pathetic performance”. In this blog I advocate a better way to plan and prepare for a mediation – pre-mediation mindset coaching. This is already common in a divorce situation. I believe it has a place in probate dispute mediation, which can be life changing.
I have attended countless mediations over the years on behalf of my clients. I used to think that I was pretty good at preparing my clients for a mediation, until I did my mediation training. Looking back, I realise that there were things that I could have done differently, and considerably better.
Clients and lawyers often prepare for a mediation as if it were a day in court. Parties mostly attend a mediation wishing to settle and get out of the litigation, but their tactics are to fight as aggressively as possible and unsettle their opponent in the hope that they will yield to pressure. Many people believe that to behave otherwise will be perceived as weakness. Sometimes the tactics work, but it is a dangerous game to play. If it goes wrong, the mediation can fail, sometimes quite dramatically.
The best negotiators understand that starting out with an unreasonably aggressive approach not only wastes valuable time, but it can also result in negotiations going backwards rather than forwards. It may seem counter intuitive, but if you really want to start a mediation off on the right foot, which is likely to lay the foundations for an outcome that you want, then treating your opponent with dignity and respect is the better approach. Sun Tzu’s quote: “build your opponent a golden bridge to retreat across” is often quoted in mediation circles, for good reason.
To put it in the words of the US psychologist and ex-hostage negotiator George Kohlrieser: “Bring people to their senses, not their knees”. That takes strength and serenity. Some people negotiate this way naturally, but human nature is to adopt a fight-or-flight approach, which can be detrimental.
It’s hard to change your mind, even in the face of overwhelming opposing evidence. It’s human nature to look for facts that confirm our own views. It’s called “motivated reasoning” and it can make it difficult to resolve an emotional conflict. The good news is that you can train your brain to adopt a more objective perspective. Good judgement and decision making require a healthy mindset and a willingness to minimise our natural inclination to feel defensive. If you approach a negotiation with a good understanding of your own needs and interests and a desire to understand – and crucially respect – the other’s side’s perspective, then you will be halfway there.
A good mediator can help on the day but there is little time at a mediation to think carefully and the mediation environment can sometimes feel quite pressurised. Pre-mediation coaching in advance of a mediation can help create the right mindset before entering a negotiation. The following quote from John-Roger Hinkins sums this up beautifully: “If you walk in with fear and anger, you’ll find fear and anger. Go into situations with what you want to find there.”
Many clients enter a mediation full of fear, especially if they are involved in a probate dispute with family members where relations are fractious. They fear bumping into their enemy on arrival, coming face to face with them during the day, getting upset, making the first offer in case they go too low, being misunderstood or getting a bad deal…. The list is endless.
For a lawyer, the run up to a mediation can be a very busy time with position statements, bundles and costs information to prepare. Hours are spent on the position statement, which often contains repetition of previous legal arguments and posturing to ensure that the client enters the mediation with a strong “game face”. Other than a general conversation with the client in advance about what to expect at the mediation and a discussion (sometimes on the morning of the mediation) about tactics, there is often little time for a deeper discussion about the client’s mindset and psychological state. If there is time for this, it can be overshadowed by the legal advice which the lawyer needs to give, with the result that the client never feels truly heard or understood. The missing bit is often looking after the client’s emotional needs more attentively by helping them to turn up with the right mindset.
Here’s a story about why I really believe in this. Many years ago, I was dealing with a very difficult farming dispute which had been ongoing for years. Having lost two children and his father and then finding himself embroiled in a bitter feud with his family, my client had been through a lot. He was grieving, angry and intransigent (understandably). We arranged a mediation. In all honesty, I did not have high hopes for success, but as going to trial made no sense on the figures, it was worth a shot. I recognised my limitations as his lawyer and saw that my client would benefit from speaking to a third party in the run up to the mediation, so I referred him to a relationship coach. The result was remarkable. I can honestly say that my client attended the mediation with a noticeable mindset shift. By stepping back and looking at the situation from a different perspective, he recognised the damage the litigation was doing to him and his family and he connected with the value of settlement. The mediation was successful. I will never forget the relief that brought or the pint I shared with the client and his family that night.
I offer pre-mediation coaching to clients who have an upcoming mediation with a third-party mediator. However good your lawyer is, it can really help to speak to someone who is not involved in the case, but who understands the issues, inevitable emotions, the law and how mediation works. As an experienced probate litigator, CEDR accredited mediator and conflict coach, I am well placed to help.
During a 1:2:1 session, I will NOT provide any legal advice but I will:
- Listen to your story objectively – without passing judgement.
- Help you to see the dispute from the other side’s perspective.
- Spend some time talking to you about your own conflict and communication style and the approach most likely to be effective at a mediation.
- Explain some of the key principles of effective negotiation.
- Help you consider your own needs and interests associated with resolving the dispute.
- Help you to understand the emotional cost of continued litigation and how settlement would help you to move on with your life.
If you are interested in booking a session with me, I offer telephone, video conference and face to face meetings. More information and my charges can be found on my website under Mediation Services/Julia Burns CV and Fees.