Having done thousands of mediations, I have come across a phenomenon that I call the Negotiation Telephone Game. How it works is this: I ask each side a basic question like how did we get here to mediation? I then follow up with a question such as what conversations took place informally regarding settlement? Inevitably the answer to those questions is often completely different depending on who you ask. Even though it was the same conversation, hearing it from two different sides, you would think they had different conversations.
In one case, I asked both sides those questions and the plaintiff answered that the defense called them up and invited them to come to the mediation. The defense said that they had a conversation after the court had ordered them to go to mediation and they agreed to go. The plaintiff answered that “I told them that i would only go to mediation if they were serious.” The defense said, “Given the fact that plaintiff hasn’t prosecuted this case much, we view it as a nuisance value case.” The starting settlement offer was $1,000,000 and the starting offer was $1,000. The case took many hours before the parties overcame their disbelief that the other side wasn’t coming to the mediation with the same belief.
Why does such a miscommunication occur? One of the primary reasons is that people have filters that affects what information comes in and goes out. The problem is that we don’t know how many filters exist. The other reason is because we make assumptions that the other side’s perspective is similar to ours. Finally, the third reason that this problem occurs is because the parties try to hide many of their intentions in competitive negotiations. The blog Muse succintly states it as follows:
For people to really hear you—and you to hear them—you need to understand that everyone carries filters, beliefs, assumptions, experiences, and cultural influences that shape their point of view. The most difficult part? You can’t physically see any of these things.
In short, just because you say something, it doesn’t mean that others hear you. Great communicators take time to understand where others are coming from, whether it’s influenced by cultural, professional, or personal factors. Once you understand those differences, you can communicate in a way that enhances your ability to be heard.
How then can you avoid this pratfall and make mediations more effective?
First, it is important that you understand that you have your filters. Ask questions of the other person to get a better understanding of the problem. Perhaps consider asking the question, “what are your client’s expectations from the mediation?” Not dollar wise. Just expectations. We all know that the starting offer won’t be close to the ending offer. Understanding how the client feels might help you manage your own expectations.
Second, don’t focus on efficiency of communication by getting the message out as fast as possible, but instead focus on truly understanding the reasoning behind communication. “What do you think is necessary to be accomplished before we conduct the mediation?”
Third, don’t just assume that the fact that a party goes to mediation they will have the same expectations as you. In fact, just throw your assumptions out the door. Then start to try to understand what are the other side’s assumptions.
Trying to understand the other side and their assumptions will go a long way to making your mediations more productive.