Identifying Miscommunication and Incorrect Assumptions in Mediation.

Posted on 05/02/2016 · Posted in Mediation

Mediation has proved an effective means of resolving disputes from the personal to commercial. It is now so widely accredited that in 2008 the European Union implemented the ‘EU Mediation Directive’ with the intention of creating an amicable framework that member states could use to negotiate. Mediation extends to a wide range of situations, from banking, to information technology , to construction and even personal disputes.

Key to any successful mediation process is the ability for the disputing parties to be able to have an open, clear and collaborative discussion in order to lay out and clarify perspectives, understand opposing opinions, and ultimately move towards a mutually acceptable resolution.

It is the role of the mediator to ensure that this happens, and there are a number of ways a qualified and experienced mediator will do this. First and foremost the mediator, with the agreement of the parties involved, will establish the ground rules for the session and be clear to set expectations up front around the way in which the session will be run – this may include anything from the way participants are expected to listen and communicate with each other, to how the mediation process is going to work, to what time participants are expected to turn up to each session.

All of this groundwork and expectation setting upfront helps to build a collaborative and constructive environment for the mediation to take place in, and aims to reduce the likelihood of miscommunication or incorrect assumptions being made. However the mediation process is a human one, and inevitably miscommunication can of course take place, with participants also on occasion drawing incorrect assumptions about another party’s stance or statement. In this case it is absolutely vital for the mediator to have the experience and tools to be able to identify, address and resolve such instances.

A man’s character may be learned from the adjectives which he habitually uses in conversation”
Mark Twain

While mediators need to be great listeners, they also have to know when to step in and aid or steer the discussion, so when a mediator uses his or her trained ear and experience to identify a possible area or instance of miscommunication, he or she may ask a participant to repeat a statement to ensure it is absolutely clear in both its intended meaning and how it is interpreted by the other participants, ask an open-ended question for the purpose of greater clarification, or even paraphrase a statement back to the speaker to once again ensure the meaning is 100% clear to all participants and any miscommunication is resolved instantly.

Mediated negotiations typically begin with a joint-session that serves to uncover any differing views of the facts and to clarify what each side considers a satisfactory resolution to be. The narrative of the dispute is unravelled and re-framed through the mediator’s re-telling of it enabling both parties to take a more objective view and seeing how they might have contributed to the issue at hand. The aim of mediation is to take the focus away from the conflict of the past and towards brainstorming positive resolutions in the future.

As well as instances of miscommunication, mediators are trained to spot where incorrect assumptions might be made and how to address these. We all naturally create our own subjective social reality based on who we are, our surroundings and even upbringing, and this will dictate our perceptions and behaviour on a daily basis. The cognitive biases that arise from this reality we shape mean that we may distort or deviate from logical argument in order to serve our own purpose and justify our own world view. An effective mediator recognises where an individual might be demonstrating such a cognitive bias that may lead to them drawing the wrong assumption, and will address this upfront, either by probing further into a particular opinion or statement, or by ‘reality checking’ or ‘reality testing’, a technique used by a mediator to invite a party or participant to re-examine their perceptions. Equally a mediator may choose to take on a more affirming role in this type of situation where he or she will actually underline areas in which agreement does exist, thus reinforcing a more positive and collaborative environment for agreement to be made possible. Incorrect assumptions in business deals may often be borne out of differing cultural norms and bargaining styles. In some cultures bargaining may continue long after a business deal has been made whilst others may consider this aggressive. Many people are unaware that their style is culturally unique to them. Reminding parties of each of their shared interests particularly in business deals is an important step in aiding consensus to be reached.

In any case of miscommunication or where incorrect assumptions are made, an experienced mediator will draw on his or her experience and skills to address these issues upfront and steer the parties back towards a clear and cooperative path.

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Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.