Five Approaches to Client-Centered Mediation Advocacy
By Peter V. Arcese and Thom K. Chu
As dispute resolution professionals, we habitually orient ourselves as advocates. We either
advocate for our client, who may be a party to a mediation, or the mediation process. This often puts our
focus back on ourselves, as we self-monitor our role with internal questions such as “am I protecting my
client’s rights/interests here?” or “am I supporting the process of party self-determination at this
moment?” Sometimes, we lose the importance of focusing directly on our client or the party. While we
are engaged in a relational dynamic, we may sometimes shift our focus to managing abstractions, rather
than directly attending to the very people before us.
So, what can we do to remain in the moment and focused on the persons we are supporting,
directly as an advocate, or indirectly as a neutral? Building on a CLE presentation based on the
transformative approach to conflict that we presented in Seattle earlier in 2015, we offer five approaches,
identified by Peter, followed by practical reflections on their intersection with interactional support (IS)
skills from Thom’s transformative mediation practice.
1. Listen. You’ve heard a lot, no doubt, about techniques such active listening, reflective
listening, close listening, and deep listening. Which model you use is not so important, so long as you
choose one and actually do listen. Use a method, learn a method, and apply it. Listening will not only give
you more information, it will enhance your presence, which in turn will support the person to whom you
are listening. Reflective listening, as developed in the transformative model, can also be used in
facilitative mediations, caucuses, and individual client conferences. That includes listening not only to
your client, but also to the other parties, and the mediator. A mediator may apply reflective listening to all
parties, including counsel. By listening to the person, you are empowering them and the process. But
should you, as an advocate, empower an opposing party? The empowerment created by reflective
listening supports a constructive relational dynamic. It allows the person being heard to feel heard. If you
need to discover the interests underlying a position, proper listening will encourage parties on both sides
to speak more freely and directly. They will feel safer and more connected to the process. Listening
becomes the gateway for the four following approaches.
Thom’s transformative tip: Attentive listening in the transformative approach to conflict
challenges the mediator to become detached from one’s own need to lead and guide the parties and to
suspend the trained need to interrupt the speaker in order to clarify, organize, or otherwise structure the
conversation. An attentively listening mediator is following, not leading the conversation, and is not
“listening for” issues, key facts, or other elements. Even a when a mediator does not interrupt a speaker,
the need to self-monitor for preparing to lead the speaker is critical and probably one of the most
significant habits to unlearn so that one can fully listen with close attention and focus, while actively not
searching for a focus, theme, or endpoint. The image that comes most readily to mind in reflecting on
practice is to become something of a human scribe, to collect what is spoken without judgment.
2. Action. There’s a lot to listen to. It’s helpful to listen for particular information. If you’re using
the facilitative model, you’re listening for the interests that underlie the positions. One way to gain
understanding of interests is to listen for language that expresses action. Take a tip from actors, directors,
and playwrights, who trade in representing the nature of conflict. Most observable behavior and speech is
primarily driven by one of four actions: revenge, discovery, seduction, or escape. Does someone in the
mediation room want to: “get even”, “understand”, “persuade”, or “get out”? These actions are often
perceptible regardless of the degree, or proportion, of rational or emotional speech. Just listen for the
action and you will get closer to the motivation of the speaker. It will help you discern what they are
trying to “do.” What do they want to accomplish? What is their objective? This understanding can help
you evaluate what is driving a party who is asserting a position or wanting to protect a legal right.
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Thom’s tip: The intersection between interactional support skills and action comes first in
reflecting the speaker’s words accurately without editing or toning-down the “heat” in what is said. The
reflection happens during a natural interval or pause in the narrative. There are no questions in reflections,
rather a mirroring-back to the speaker that both underlines and clarifies the action described by the
speaker. Even if the mediator is inaccurate or otherwise imprecise in reflecting back, a client will very
quickly correct the mediator, who in this process is both affirming the speaker and gaining better
understanding of the action, all without editing or re-directing the flow of speech. An angry or confused
speaker will gain further clarity in the cycle of being attentively listened-to and accurate reflection given
back, being given the deliberative reins to choose. The support given is to strengthen the speaker’s selfexpression and voice and is carefully timed so as not to interrupt the natural flow.
3. Cognitive Modes. Listening will tell you what time it is in a party’s mind. Are they living in
the past? Are they anxious about the future? At any one time, we tend to direct our conscious awareness
in one of six modes: “perception, introspection, retrospection, assertion, expectation, and judgment.” See,
Christopher Collins, The Poetics of the Mind’s Eye (1991). In order to reach settlement, parties must be
brought into the present. To reach agreement, both parties must agree “now”, in a present-tense mindset,
the cognitive equivalent of shaking hands across the table. This present agreement acknowledges both
past and future, but must be made from the vantage point of the present. The challenge is that our normal
conscious awareness bounces between these cognitive modes by the millisecond. We want to listen to our
clients and parties, to notice where they are spending the most “time” while speaking. Are you hearing a
lot of present-tense language, or past and future tenses? Does what they say tend to emphasize external
circumstances or interior states? For example, a party who is always recounting personal experiences
from the past is deeply in the retrospective mode, which tends to be episodic and emphasizes external
circumstances. The client who consistently says, “It feels like…” is in an introspective, interior, and
present mode, which is almost always expressed in figurative language (simile and metaphor). Clients
who make matter of fact statements about “that’s the way things are …” are often in the mode of
assertion, which is expressed impersonally (i.e., assertions that apply to all persons for all time) and are
often the product of cultural or social conditioning. For those clients or parties who are living in the
future, there is the mode of expectation, or “this is what will happen.” And for those in the mode of
judgment, also future-oriented, their language expresses how what will happen “will matter to me.” After
a while, you will develop an ear for which mode a person is in. You can then support them by supporting
shifts into the present, which usually involves sensory language, such as “I hear that...” or “I can see
that….”
Thom’s tip: As an approach geared to following rather than leading clients, cognitive modes may
vary between parties, and the mediator must follow them. The interactional support skill of summarizing
topically purposefully focuses on lines of disagreement among the parties rather than lines of agreement,
and helps them to organize their own narrative with minimal editing or judgment. Speakers operating in
disparate cognitive modes will recognize, through summary, their differences, and by having the lines of
disagreement highlighted, have more opportunities to gain further clarity about their own and another’s
position.
4. Story. Keep listening to action and noticing cognitive modes, and you will begin to discern a
narrative. Chances are you’ve already been working to piece together a narrative from the time of intake.
A client or party has told you “what happened” and there is usually a sequence of a beginning, a middle,
and a view toward a desired end (cognitive modes of expectation and judgment). You’ve been presented
with a sequence of events, selected incidents unfolding along a chronological line. You’ve been listening
to the story, but what you also need to hear is the plot. You need to listen for the elements that speak to
the causes of why the story matters to the parties. And you’ve been developing the tools as you’ve been
listening. In Aspects of the Novel (1956), E. M. Forster described the difference between a (mere) story
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and a plot as: the king died and then the queen died (story) — the king died and then the queen died, of
grief (plot). The plot of the story is what will clue you in to the interests and values of your client or a
party.
Thom’s tip: Through the oscillation between listening, reflecting, and summarizing, the mediator
gives the speakers the opportunity to take over to add or subtract, to sort, organize, and prioritize their
own narratives and stories. The most significant challenge to the mediator is the need to monitor oneself
to become as truly attentive to the speakers as possible. If the interactional supports are effective, then the
speakers become more confident in their speech and the stories that they tell. As they come into more
equilibrium they become more able to invent solutions themselves.
5. Values. What are those values which matter to the parties, and why are they important? If we
respect a party’s self-determination, we are expressing a value in supporting their need for autonomy. If
we manage the dispute resolution process so they are safe, we are valuing their need for security. If we
are supporting a conversation, we are supporting their need for connection. Under the Human Givens
Approach, a therapeutic model gaining recognition in the UK, there is an assumption that a healthy
human being experiences a state of equilibrium where human emotional needs and resources are being
met. See, Joe Griffin and Ivan Tyrell, Human Givens: The New Approach to Emotional Health and Clear
Thinking (2004). If these emotional needs are not being met, such an imbalance causes stress, distress, or
illness. Their analogy is to a plant. A plant needs water and sunlight. Deprive it of these and it will suffer.
Griffin and Tyrell’s list of needs include:
• Security — safe territory and an environment which allows us to develop fully
• Attention (to give and receive it) — a form of nutrition
• Sense of autonomy and control — having volition to make responsible choices
• Emotional intimacy — to know that at least one other person accepts us totally for who we
are, “warts 'n' all”
• Feeling part of a wider community
• Privacy — opportunity to reflect and consolidate experience
• Sense of status within social groupings
• Sense of competence and achievement
• Meaning and purpose — which come from being stretched in what we do and think.
One of the insights of the Human Givens Approach is that, expanding on a needs-based formulation, there
is a corresponding set of resources to support those needs:
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The ability to develop complex long term memory, which enables us to add to our innate
knowledge and learn
The ability to build rapport, empathise and connect with others
Imagination, which enables us to focus our attention away from our emotions, use language
and problem solve more creatively and objectively
Emotions and instincts
A conscious, rational mind that can check out our emotions, question, analyse and plan
The ability to 'know' — that is, understand the world unconsciously through metaphorical
pattern matching
An observing self — that part of us that can step back, be more objective and be aware of
itself as a unique centre of awareness, apart from intellect, emotion and conditioning
A dreaming brain that preserves the integrity of our genetic inheritance every night by
metaphorically defusing expectations held in the autonomic arousal system because they were
not acted out the previous day.
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Listening for which needs are not being met in the story, and then listening for the opportunity to
support a party’s resources in meeting these needs can contribute to restoring equilibrium. That shift
toward greater equilibrium may result in a resolution, or at least prevent further deterioration and harmful
interaction. The transformative model acknowledges such equilibrium and the natural desire to restore it.
Thom’s conclusion: While all interactional support skills embody the value of empowering
every speaker and supporting self-determination, the simple element of checking-in when added to a
reflection or summary, a question of “did I get it right?” or “is that close to what you said?” is in itself an
expression and embodiment of putting the client’s own story, narrative, and capacity ahead of the
mediator’s invention of solutions. These few words, appropriately expressed, are the sign and symbol of
putting the client in the center and a core value of the transformative approach.
For further reading on the transformative approach and its confluence with client-centered lawyering, we
recommend you see Robert A. Baruch Bush, Mediation Skills and Client-centered Lawyering: A New
View of the Partnership, Clinical Law Review, Vol. 19/No. 2, Spring 2013: 429-488.
http://www.law.nyu.edu/sites/default/files/upload_documents/Bush%20-%20Mediation%20Skills.pdf)
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