The third in a series, this article offers targeted Values-Based Language phrases illustrating how to alter the way you speak to clients during family law mediation sessions.
By Fern Topas Salka, Family Lawyer and Mediator
This explores the many language and communication tools that can be adapted to the field of family law Consensual Dispute Resolution (CDR) as well as to the elevated settlement of those family law cases still in the traditional adversarial system. It provides a list of useful Values-Based Language (VBL) phrases in bold italics, but they are not meant to be a script to repeat by rote. Instead, they are meant to illustrate the way family law professionals can alter the way they speak with their clients to promote successful mediation sessions.
Values-Based Language is derived from a mix of fields besides the law – including psychology, communication, spiritual and mindfulness training, and business management. The words reflect a host of concepts about mediation, as well as the guidance of many wise mediation teachers, hence, the phrases are followed by a brief explanation of the rationale behind the proposed language.
Values-Based Language to Use During Sessions with Your Family Law Clients
Let’s take a moment to get settled so you can be here at your best despite the tensions surrounding our work.
It’s a good idea to acknowledge the tension everyone feels. You might also suggest that if it feels too tense to go on, anyone can ask for a break. As the session progresses, I might make that suggestion myself. In some cases, I may end the session rather quickly and suggest we try again at a later date. I might also admit that a particular issue would best be dealt with in a therapist”s office or that it would be helpful to adjourn and seek the advice or bring a coach (or two) into our next session. Another support person I might recommend be added to the team is a consulting attorney, a financial specialist, or a child development specialist.
Stop. Breathe. Think.
I sometimes invoke this Buddhist concept when things get too tense and I want to slow things down.
Why do you want that? What will that do for you?
In interest-based discussions, sometimes called facilitative mediation (as opposed to evaluative negotiation or positional bargaining where the mediator tells the people what they believe a court would do and urges them to accept his or this analysis or risk great financial harm), we begin by listing each person’s interests, concerns and goals for the agreement. That list will guide and expand the search for solutions. If someone offers a position (i.e., a specific solution that dictates exactly how a problem must be resolved), we look for the “why” under the specific “what” and “how” (by asking what is the reason you want that particular thing?). This provides information and insight and expands the possible options for meeting those interests beyond the single position that was proffered. Mediation pioneer Forrest Mosten suggests we milk the interest list dry1. You can do this by using the therapist’s tool of “Can you tell us more?” If someone is too specific or positional (“I want the house”), you might reframe it in terms of what you think is the underlying interest behind a position (“So you are concerned about staying in the neighborhood?” or “You don’t want to make any sudden moves now?). That will open up the possibility of finding other ways to stay in the neighborhood or a way to ultimately sell the house but not immediately. After taking a stab at re-stating what you think they are trying to say, you should ask: “Do I have that right?”
“I’m hearing you say… is that correct?” is another way to find out if you have it right.
“Looping” what someone says (i.e. trying to repeat exactly what they have just said) makes it more likely that you will really understand what that person is saying. We often believe we understand something when, in fact, we miss the nuance and thus the heart of what someone was saying. It may feel redundant or awkward to repeat something you have just heard, but most people appreciate being clearly understood. In fact, people respond well when we echo the same language they have used.
I’m curious… I wonder… Can you help me understand…
These invite open conversation which provides understanding and information which, in turn, provides the possibility for coming up with a multiplicity of options. It also unveils hidden agendas and emotions which remain roadblocks unless they are made visible.
Listening doesn’t mean agreeing.
To assure a free flow of ideas, it is best if people are requested to refrain from criticizing, commenting about or even responding to the other person’s stated interests. I assure everyone that it is not necessary to have an all-inclusive list; it can evolve. This kind of criticism is difficult to contain and I have to repeat this explanation often because articulating interests is key to a successful mediation.
I can understand you might feel like that.
This states the concept that there can be understanding without agreement which, hopefully, those who are mediating will begin to emulate with each other.
It’s not a question here of one of you being right and the other being wrong. It is a matter of finding a way to do this under circumstances that give you the best chance of making it work for the whole family.
Not only does this acknowledge that the mediator is there for both of them, it makes it clear that two points of view can exist simultaneously without being decided. It also elevates practical solutions over moral judgments, future over past.
If we don’t consider some of her/his concerns, s/he is not going to agree/cooperate (and neither would you).
A person who is reluctant to let go of who is right and who is wrong may, nonetheless, be more open to considering the concerns of the other person if he or she gets the point of what collaborative law pioneer Chip Rose calls “mutuality of interests”: i.e., the need to meet the needs of the other to get their own needs met.2
What would have to happen for you to be comfortable with…
If someone is still stuck, I will use this language to try to find out what else they need. This obviates the problem of someone just digging in his/her heels and saying “no” because the other person wants a “yes.”
I’m sorry you feel like I’m aligning myself with one side.
I don’t hesitate to admit if I think people are upset or feel I am biased. I air the discomfort, take my own ego out of it, and try to find out why they feel the way they do. This often comes up when someone asks me to clarify the law and the other side doesn’t like the answer. In that event, I will explain that the law is the law, but there is often a lot of discretion and results are often fact-dependent, all of which is why a solution of one’s own making is usually better than one that is imposed.
I want you two (rather than only me) to have all the information that is available so that you can be sure I have not mis-communicated anything, much of which you may understand even better than I. When you have this information, you are in a better position to make a good decision.
I believe that a general (though not immutable) policy of meeting in joint session rather than caucusing with each side avoids the paranoia engendered by meeting with each person separately. It also avoids what is often intended as a manipulation of the mediator during such private sessions and the corresponding pressure by the mediator in order to resolve the case by withholding full information or scaring each side into a deal. (Many attorneys are loathe to give up this power since it is effective in settling many cases. But then again, a bat would be even more likely to beat someone into submission, yet we chose a less compelling technique because it is a better way to resolve the problem.)
You’ll want to figure out…
Using this language highlights that they have mutual problems, a technique called narrative mediation.3 By stating “We have a timing problem” instead of “You are always late,” it does what “Getting to Yes,” the “bible” of interest-based negotiation suggests: i.e., separates the people from the problem. Another example would be moving from “We have to decide who has custody, where the children will live, and how much time they will spend visiting with the other parent” to “You’ll want to figure out how you want your relationship with your children to be, which entails how to share your responsibilities as parents and agreeing on what kind of time the children will spend in each of your homes.”
Let me try to say that in a different way.
Reframing is a primary tool of the mediator. While retaining the fundamental meaning, it can change the description of the conflict and present it in a way that is less likely to inflame. We can reframe positions and accusations into interests or feelings, so that, instead of “Dad doesn’t help at all with the homework,” we try “Mom needs help in…” We can present interests as requests [“He would appreciate if….”].
Let’s brainstorm any ideas that might meet some of these interests.
Brainstorming without any judgment provides a way of generating options that build on overlapping interests and different priorities. Everyone is encouraged to “offer any and all ideas that address the interests since listening to the other person’s ideas -or even offering a suggestion yourself- doesn’t mean agreeing to it.” The mediator is welcome to add his or her own options, as are any attorneys who are present. Once there are no more ideas, they can prioritize which options they agree merit work to reconcile any differences.
Language matters. When someone says “you” in the context of mediation, it’s usually a finger-pointing accusation that is not well-received if it is received at all. “I” is less presumptuous about what the other person thinks and it indicates personal responsibility. “We,” of course, is collaborative and fosters joint efforts that mediation encourages.
It may seem trivial that it is better to use the word “and” than “but” whenever possible. When you say “but” you are negating everything that came before. “And” is also consonant with the idea that two truths can exist at the same time, especially when most items up for discussion are matters of perspective not provable fact.
Mend, harmony, brave, proud, honor, seek, wound.
These and other words that touch the heart rather than the head elevate and soften the conversation. 4 (We are trained to use words that touch the head, such as their corollary words such as solve, outcome, recognize, want and anger.) In addition, urge peoples to avoid poison words: absolutes [never use always and never], moralizing [“shoulds”], orders- [“musts”], comparisons [ “I am more…”], one-sided thinking [“The truth is…”], contempt [one of the four horsemen of the marriage apocalypse noted by marriage and divorce researcher, John Gottman, this includes insults, disrespectful and humiliating language], and threats [“If you don’t…”] 5
In the future, how would you like to be told there is a problem?
When someone is upset with how something was communicated, find out how it could be handled better in the future. This moves the conversation from blame to solution.
How’s that working for you? Will it help?
There are some lessons to be learned from popular media. Dr. Phil always asks “How’s it working for you?” to point out that something is not having the desired effect. This can be followed up by asking “Are you ever going to convince him/her of that?” and suggesting that it may not be the most useful way to make a point. I prefer the question by the Russian spy in the movie “Bridge of Spies”: “Will it help?” If it won’t, I ask my peoples if they can stop doing whatever they are doing- usually speaking loudly, quickly and in such a contemptuous way that it is inconceivable they will get a positive response.. Another way to say this is “S/he isn’t listening now. Would you like to be heard? Can you say it in a way that might be possible?”
What price are you paying for this conflict?
When people are on a non-productive path over a period of time, I ask them to focus on the negative effects the problem is having. It is sobering reality-testing.
What do you need him/her to say to further the movement towards agreement?
Sometimes, one or both people unable to move from his or her position. This question may unearth some underlying roadblocks.
Sometimes it’s helpful to apologize. Is there anything for which you wish to apologize?
This is another technique for getting past impasse. If you have reason to believe they are capable of and interested in offering an apology, this can provide a very healing conclusion to the mediation. As they say about cross-examination, though, it is risky to ask if you don’t know that the answer will be positive – or that it will be well-received. More significantly, even if someone is willing to do this, it needs to be done right. That means saying:
- A clear “I’m sorry” statement;
- An expression of regret for what happened;
- An acknowledgment that social norms or expectations were violated;
- An empathy statement acknowledging the full impact of our actions on the other person; and
- A request for forgiveness.6
I like to add something that indicates how the person asking for forgiveness intends to make it better in the future. I’d like to brainstorm how I can do better in the future. I also like to add: If you need some time to think about this, I understand. Anything short of that, however, may make the situation worse. It is sometimes helpful if the mediator finds an opportunity to apologize for something he or she could have done better and can model offering a good apology.
At the Final Meeting
Congratulations! Look how far you have come.
This is the time for cheerleading and summarizing how they have moved from conflict to resolution. It also solidifies their resolve to continue to work cooperatively in the future.
If you have problems in the future, as you may at certain times in your future, I am sure you will be able to use some of the skills you learned and practiced here. And if you can’t, don’t hesitate to call for a “tune-up.”
It is the time for emphasizing and normalizing the fact that problems routinely occur (especially at flash-points like life-cycle events) and should be dealt with in the same manner as they dealt with their separation. Forrest Mosten calls these post-judgment solutions “tune-ups.” If one of them steps up and responds, that’s great. If no one does, you can acknowledge them instead. In either case, everyone likes to be acknowledged for their courage and their hard work.
You’ve done a wonderful job and given a gift to your children. You can be proud of yourselves.
Adding this elevates the discussion from a “deal” to a “gift.” Conceiving of their agreement as a gift also has the lingering effect of making it important to keep doing so in the future.
These words may seem awkward at first, just as speaking a new language always does, but, with consciousness and practice, many of these phrases become second nature. With continued use, coupled with pedantic study about the theories behind the words, we can all become fluent in Values-Based Language and improve the quality of our work with families in transition. For those readers who want to put the family back in family law, VBL is one way to do so.
1 Mosten, Forrest and Scully, Elizabeth, The Complete Guide to Mediation, 2nd edition, (American Bar Association, 2015).
2 Rose, Chip. In a conversation with the author. March, 2017.
3 Winslade, John and Monk, Gerald. Narrative Mediation: a New Approach to Conflict Resolution (Jossey-Bass, 2001).
4 Lois Gold in Bowling, Daniel and Hoffman, David. Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution (Jossey-Bass, 2003).
5 Gottman, PhD., John M. The Seven Principles for Making Marriage Work (Harmony Books, 1999).
6 Winch, Gary, “The Five Ingredients of an Effective Apology,” Psychology Today (November 21, 2013).
Schneider, Carl D. “What it Means to be Sorry: The Power of Apology in Mediation” Mediation Quarterly, Vol. 17, No. 3, (Spring, 2000).
Fern Topas Salka is a Certified Family Law Specialist and Fellow of the American Academy of Matrimonial Lawyers. She is the former Chair of the Family Law Section of the Los Angeles County Bar and has taught and written extensively about mediation and other consensual dispute processes. She has been named SuperLawyer for the past 11 years by Los Angeles Magazine, and is a founding member of the Los Angeles Collaborative Family Law Association, an association formed to advance the practice of collaborative family law. www.fernsalka.com
Values-Based Language for Successful Family Law Mediation and Settlement (Part 1)
This article is the first in a series designed to explore “Values-Based Language”: the many language and communication tools that can be used by mediators, collaborative practitioners, and family law attorneys in more traditional practices seeking to make their settlement skills more family-appropriate.
Values-Based Language: the Initial Meeting with Your Family Law Clients (Part 2)
The second in a series, this article offers a list of useful Values-Based Language phrases illustrating how to alter your language during your initial meeting to create a protected and informed environment for your family law clients where mutually acceptable solutions will flourish.