22 Jan “Use Your Words”: Common Sayings As Mediators Get To Work
Do you ever find yourself returning again and again to a favourite saying? A phrase that just seems to capture the heart of the matter so perfectly that it works for many similar situations?
A turn of phrase is a way of expressing something, in writing or speech, that stands out in some particular way. If you say you’re “jumping out of your skin,” you’re using a familiar turn of phrase. You might describe a poet or songwriter as using an elegant or graceful turn of phrase — you mean that she has a way with words. And you probably won’t ask your friend known for his awkward turns of phrase to give a speech at your wedding. The first known use of this phrase was in 1779 by Benjamin Franklin. Experts guess that its origin lies in the sense of words being “turned” like wood on a lathe.
Experienced mediators have undoubtedly collected some tried and true sayings they pull out often at the mediation table to help put things into perspective. In this blog series, I share some of mine and a few attributed to others I quite enjoy.
Why Does Mediation Work?
It’s become abundantly clear that “everybody’s story makes sense to them” even if it doesn’t always make sense to me. Luckily, you don’t have to convince the mediator of the merits of your position, nor should you spend precious time trying to do so.
Your job at mediation is to persuade the other side that resolving your differences in a mutually acceptable agreement is a better option than carrying on to trial. As such, “mediation is an opportunity to shift from being adversaries to partners in resolution.”
As Max Lucade says, “conflict is inevitable, but combat is optional.” Mediation is a space where we can first attempt to find peaceful agreement and resolution that spares all sides from battle scars.
I like to remind participants that “mediation is an opportunity for you to trade hope for certainty.” In other words, a bird in the hand is worth two in the bush.
But some parties who are determined to proceed to trial clearly believe they’d rather “take their chances” at court. I have to ask: why? Why give up the power to be actively involved in a resolution? Why not try to find agreement instead of accepting the risk that you may walk away in a much worse position?
Since “you can’t negotiate with a jury,” you can only hope they see the merits of your case and make sense of your story. Ultimately, however, as Floyd Siegal says, “In court, the truth is whatever 6 strangers [or one judge] determine it to be.”
As difficult as negotiations can be, always remember that at mediation the power to make the final decision is always in the hands of the decision makers and their counsel.
When there is disagreement, some work needs to be done to get to that place where agreement is possible; and that work is not necessarily going to be easy or comfortable.
As Saul Alinksy says, “Change means movement. Movement means friction. Only in the frictionless vacuum of a nonexistent abstract world can movement or change occur without that abrasive friction of conflict.”
It’s reasonable to expect negotiations could be tense and stressful as the parties move to a place of potential agreement. Embrace this friction as a sign of progress and evidence of change.
Participants often tell me, “If they make a significant move, so will we.” I encourage you to think about how you define “significant.” Moreover, if they make a big move, ask yourself: “What will that move do for me?”
If the other party isn’t budging, and you are keen to see movement on their, ask yourself: “What will inspire them to make a move?” After all, someone has to make the first move – and once it begins, it can be infectious!
Mediation is a chance to communicate with an opposing party in a setting where a skilled third party can facilitate discussions. Although I tend to come back to these favourite sayings, every mediation is different. There are different personalities, different issues and subject matters and different interests at work.
It’s important to choose a mediator who is attuned to the context and flexible enough to respond as needed to keep communication channels open…. I’m just sayin’.
ABOUT THE AUTHOR
Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating and arbitrating primarily personal injury and insurance cases. He serves as an arbitrator in loss transfer and party disputes under the Insurance Act.
Vance can be reached at email@example.com or (647) 777-4011.
To schedule a mediation with Vance, visit: http://coopermediation.ca/vances-online-calendar/.