This post is written by Mary Korica, an independent writer, speechwriter and editor with a long-standing interest in dispute resolution. She can be reached through marykorica.com.
“The Stories ADR Professionals Tell: Challenges, Opportunities, and Tips and Techniques for Success”
Guest Speakers: Maurice Ford (Mediator, Psychotherapist) and Ewuwuni Onnoghen-Theophilu (Arbitrator, Construction Adjudicator)
Moderator: Marvin Huberman (Mediator, Arbitrator, Investigator, Adjudicator)
On November 30, 2023, the ADR Institute of Ontario (“ADRIO”) held the final session of a three-part webinar series titled “The Stories ADR Professionals Tell,” with speakers Maurice Ford and Ewuwuni Onnoghen-Theophilus. Marvin Huberman was Moderator.
Maurice Ford stated, “You’ve got to spin on a dime, and be very aware of nuances.” Marvin Huberman had just introduced the session’s focus—how to maximize the prospects for success in a mediation or arbitration by uncovering the layers of each party’s needs, interests, and objectives—and navigating the accompanying barriers to settlement.
Huberman offered an example that a marital dispute over where to vacation might seem to be about location, but further questioning could uncover that it is actually about the activities or company each partner prefers. Continued probing could uncover it is also about who won their last argument, and as more vulnerability emerges it might prove to be about whether either party needs the other’s agreement as a show of love and appreciation.
“First and foremost, ask a lot of questions and listen,” Ford advised. “The whole process is really in the listening. There’s a lot of information you can get intuitively or by observing body language, about whether you’re touching on the right pieces of the puzzle and where to shift the discussion.”
Huberman offered six questions that are useful for drawing out unspoken interests: [1]
- “What is important to you?”
- “Can you help me understand why that’s important?”
- “What concerns you about the situation we’re dealing with?”
- “How does [it] affect you?”
- “[That] matters to you a lot, is that right?”
- “Is there something you think that the other party does not understand about your situation?”
Ewuwuni Onnoghen-Theophilus agreed and added that sometimes questions should be designed to simply help parties articulate their feelings and needs. “Some parties might be hesitant about speaking, or may not be clear about what they feel or want. So you prompt them, try to give them cues and suggestions: ‘Could this be what you’re feeling?’ or ‘Could this be what you’re trying to get at?’ or ‘Are you saying that if the other party does this, it would make you happy?’”
Ford felt the best approach is “to be curious, to be non-judgmental, and to keep an open mind about what the true issues and concerns are regarding needs and interests.”
Huberman discussed a number of common barriers to settlement and techniques to overcome them. When negative assumptions about the other party are the impediment (e.g., “they’re an obnoxious jerk”), Huberman offered ideas for challenging those assumptions while maintaining one’s neutrality. For example, the practitioner could acknowledge the party’s opinion, but refer to their own experience with the other party and ask whether the other side’s past poor behaviour could have resulted from a situation or circumstance rather than a personality characteristic.
Ford described that approach as “threading the needle,” stating “you’re not enrolled in the party’s viewpoint and you’re pushing a solution-oriented focus.” Onnoghen-Theophilus suggested trying to “get the party to remember a time when the other person did not exhibit the negative characteristics. When the party remembers and acknowledges this more positive past, it makes them more open to reaching settlement.”
The panelists also discussed ways to overcome the parties’ different views of the law. Huberman offered two techniques when both sides are convinced they have a “slam dunk” case. “The practitioner can ask the lawyers to present the arguments they think the other side might make. Secondly, the practitioner can suggest that the lawyers consider the view of an imaginary disagreeable adjudicator—the practitioner could even act out the role of a disagreeable adjudicator—and have the lawyers themselves list the reasoning that adjudicator would use to decide against them.”
Ford agreed, and said these approaches “allow each party to hopefully have a better understanding of the other’s perspective, and bring some sense of realism to the situation.” Onnoghen-Theophilus advocated for “being very active in the role-playing, and poking holes in the arguments so it really brings home to the parties the facts and the weaknesses in their arguments, to help them come to an agreement.”
Lastly, Huberman addressed judgment bias—”They’re fighting over damages for personal injury, property damages, or such and they say, ‘I am absolutely sure that I’m going to get $100,000 in court—I won’t even discuss the offer from the other party.’” Ford said that the mediator, if they have a comprehensive understanding of the case law, could helpfully share the prevailing settlements with the party and that “nothing is guaranteed by going to court.”
Huberman emphasized that there are Rules of Professional Conduct that practitioners should consult to ensure they do not offer legal advice in offense of those rules. Where appropriate, mediators with the required competence should be careful in their wordings so that they are providing legal information rather than advice, perhaps most cautiously by way of analogy. The panelists closed by offering a host of resources for audience members to develop their skillsets and practice areas.
This post is written by Mary Korica, an independent writer, speechwriter and editor with a long-standing interest in dispute resolution. She can be reached through marykorica.com.
Reviewed and Edited by the ADRIO Newsletter Blog Committee in collaboration with Staff:
Babara Benoliel (Chair)
Ben Drory
Robyn Jacobson
Kim Parish
Tommy Lam (Staff)
The opinions expressed in the articles featured in this newsletter are that of the respective writers and do not represent the views of The ADR Institute of Ontario.
[1] Huberman highly recommended the source for his questions—Jennifer E. Beer and Caroline C. Packard with Eileen Stief, The Mediator’s Handbook, 3rd ed. (1997) Gabriola Island: New Society Publishers, p.106.