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How to Build Trust in Mediation
Feb 15, 2022

Authenticity and Empathy Are Critical in Mediation

Without trust, our teams will perform poorly.


Without trust, our relationships will suffer.


Without trust, a mediator will be unsuccessful in facilitating a resolution.


In a brilliant TedTalk, Harvard Professor Frances Frei describes the 3 components of trust:


  1. Authenticity – You have to believe I am being authentic;
  2. Rigor in my logic, and
  3. Empathy – You have to believe my empathy is directed toward you.


When any of those wobbles, Frei asserts, we have a trust problem.


Guess which one she says tends to wobble the most?


Empathy.


Empathy is the ability to sense other people’s emotions, and to imagine what they might be thinking or feeling. Empathy is fundamental to creating a space during mediation for each party to feel heard and understood; for their perspective to be considered; and for their experience to be honored.  


The good news is that Frei has a powerful antidote to the malady of an empathy wobble.


The bad news is that it requires a good, long look in the mirror.


Frei’s antidote (around the 5:52 mark in her TedTalk) involves identifying “where, when and to whom you are likely to offer your distraction. That should trace pretty perfectly to when, where and to whom you are likely to withhold your empathy.” Then employ a trigger, which becomes a habit, that causes you to look up from your distraction and to calm the empathy tremors that threaten to shake the critical foundation of trust.

Managing Emotional Clients

By Colleen Byers • 06 Feb, 2024
Managing Emotional Clients Colleen L. Byers collaborated with fellow neuroscience geek and mediator, Chris Osborn, to deliver this month’s Expert Continuing Legal Education (CLE) Series sponsored by the North Carolina Bar Association. Colleen co-presented about the impact of trauma on clients in the legal system and shared some practical tools for managing difficult emotions within ourselves (as lawyers or as mediators) as well as with our clients. View the CLE, which includes 1 hour of Mental Health/Substance Abuse credit in North Carolina here .

How to Negotiate Around Impasse Through Brainstorming Options

By Colleen Byers • 31 Jan, 2024
You have been mediating and negotiating all day long. You are fully invested and can sometimes glimpse the fragile light at the end of the tunnel. Suddenly, all the momentum that has been slowly building all day seems to come to a screeching halt. How do you avoid crashing into an unbreakable impasse? First things first. Pause and take a deep breath. Then take another deep breath for good measure. Then get a sheet of paper and a pen. Along the left side of the paper, write the numbers 1 through 5. Now, with pen in hand, ask yourself these questions and write the responses next to numbers 1 through 5. What is the craziest idea I can think of to solve this problem? What is the second craziest idea I can think of to solve this problem? What is a variation of the other side’s idea that would work for me with an adjustment? What is another idea? What else might work? You have now generated five new possible ways to solve this problem that you can share with the other side to keep the negotiation moving forward and avoid running straight into an impasse. Let me give you a real-life example. My daughters were fighting over the most coveted seat on the couch. The older child asserted, “This is my spot. I always sit here.” The younger child claimed, “But I was here first today!” Unsurprisingly, their attempts to persuade the other to acquiesce were unsuccessful. They are not old enough to engage lawyers to determine who had the stronger legal claim to the coveted seat on the couch but they both came running to me pleading their respective cases in hopes that I would serve as the arbitrator. I declined to serve as an arbitrator but did put my mediator hat on. We all sat at the kitchen table with paper and pen to brainstorm possible solutions that would work for both of them. You may be wondering how I got my young children to do this. I told them that they could not watch any television until they found a solution to which they could both say yes. So down they sat with pen in hand. Using questions 1 through 5 above, as prompts, they generated the following ideas: Take turns – alternate days; Take turns – set a timer and then switch; Sit on top of each other; Build a fort on the couch for both of us. Then we went back through the list one by one, and I asked each child if they were a “yes” or a “no” for that particular idea. Here is what that looked like:
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