Nearly all disputes in mediation have both a financial and an emotional component. To paraphrase mediator Julie Denny*, the chief executive of a manufacturer is not just angry because the company lost money due to defective parts; she also feels betrayed because a longstanding supplier whom she trusted cut corners at her expense.
A discharged employee asserting a claim for age discrimination is not just upset because he has lost his livelihood; he also feels humiliated by the way his bosses treated him.
A sister not only resents that she received a smaller equity interest in the family business than she feels she deserved; she also resents the lack of appreciation shown by her siblings for all the time she invested caring for their parents after they retired.
As we have previously discussed, ignoring the emotional component in a dispute can lead to impasse. Given that reality, what techniques can a mediator employ to address the complex emotions at the heart of many disputes? Unlike the largely mechanical approaches such as decision tree analysis used to value the economics of a dispute, unpacking the parties’ emotions feels more like art than science.
The good news is there are established methods mediators can use to bring rigor to the process of communicating about feelings. Among these is the Imago Couples Dialogue.
For those unfamiliar with Imago, it is a school of marital counseling developed by Drs. Harville Hendrix and Helen Hunt that seeks to transform conflict between couples into opportunities for healing and growth through improved communication. At the core of the Imago method is what is known as the Couple’s Dialogue**, which consists of three distinct conversational processes: mirroring, validation and empathy.
In marital therapy, mirroring entails the listening spouse repeating back in their own words the content of a message just delivered by the speaking spouse. It reflects a genuine attempt by the listener to understand the speaker’s point of view using statements like, “if I heard you correctly, you said that you don’t like it when I glance at my iPhone while you are speaking to me.”
Following mirroring, the speaker confirms if the listener accurately conveyed the speaker’s perspective; if not, the speaker identifies what aspect of her message was missing or misunderstood, and the listener tries again based on the speaker’s feedback. The process repeats itself until the speaker confirms the listener got it right.
In mediation circles, mirroring is often referred to as looping. As Professor Mnookin describes the process in his book on negotiating, Beyond Winning:
How do you go about demonstrating that you are trying to understand? Use a technique we call the empathy loop. The empathy loop has three steps: (1) You inquire about a subject or issue; (2) the other side responds; and (3) You demonstrate your understanding of the response, and test or check that understanding with the other person.
The second step in the Couple’s Dialogue is validation. Once the speaker confirms that the listener accurately reflected back the content of her message, the listener conveys that the message he just heard makes sense. It doesn’t mean the listener necessarily agrees with the speaker’s perspective. Instead, it conveys that the listener believes the speaker’s position is legitimate and understandable. A validating statement would be something along the lines of, “you make a fair point. I can see that I appear uninterested in what you have to say when I glance at my iPhone while you are speaking to me.”
In mediation, validating a party’s narrative helps that party feel heard and understood. Achieving that for a party can often represent a turning point because until that moment all that the party heard were statements from the other side invalidating his or her perspective. And of course that party’s lawyer is being paid to agree with them. So what’s that worth? But when a neutral mediator who has a choice in the matter says he or she understands the party’s position, it is very meaningful.
Of course, as noted, validation is not agreement. Accordingly, if after venting and hearing validation, the party asks the mediator, “So, do you agree with me now after you’ve heard my side of the story?,” the mediator should respond along the lines of, “I’m not a judge and my job here is not to agree or disagree with either side. Instead, I’m just trying to understand each side’s perspective, and certainly you’ve done an excellent job of explaining to me why you feel the way you do about what happened.”
The final step in the Couple’s Dialogue is empathy where the listener attempts to actually step into the speaker’s shoes and truly understand how they are feeling by articulating their perspective. A statement indicating empathy would be, “you felt so hurt when I made that comment. My statement made you feel betrayed and vulnerable. I would have felt the same way if I were in your shoes.”
Empathy is obviously going to be less intense in a commercial context than in marital therapy. Indeed, in the commercial context, the three steps of the Couple’s Dialogue may merge to an extent. As noted above, Mnookin calls the process “empathy looping,” which implies combining mirroring with empathy (in his book, Mnookin provides an excellent example involving a prospective employee negotiating for reimbursement of moving costs).
But stepping into the other side’s shoes and articulating their point of view remains a distinct step that can be very powerful if a mediator can persuade the parties to try it. As Denny shares concerning a partnership conflict she personally experienced:
As one of a number of owners of a company many years ago, I found myself in disagreement with a partner. One of the other partners literally asked us to switch seats at our meeting and be the other person. But once I articulated my partner’s position and her reasons for feeling as she did, I discovered it wasn’t as uncomfortable a choice as I had originally thought. We moved through the disagreement quickly after that.
In the end, addressing the emotional components of a dispute can be a challenging task that requires creativity, sensitivity and discretion. The Imago Couple’s Dialogue, adjusted for a commercial context, provides a helpful framework for mediators to guide a process that might otherwise feel quite unstructured.