From our dear FOI Brian Pappas (North Dakota):
Ava Abramowitz recently published an interesting article in Cardozo’s journal describing how consultative selling research can be used to expand a mediator’s effectiveness. I highly recommend it and my summary here does not do the piece justice. Essentially, the research demonstrates that people go through multiple stages (recognizing needs, evaluating options, resolving concerns, and making and implementing decisions) before being willing to make an important decision. Through Behavior Analysis, research identified interactive communications behaviors that correlate with success in sales. The research demonstrates how telling and sharing expertise does not persuade people. Instead, working with people to understand their problems, asking questions, and seeking information instead of jumping to solutions is the way to avoid impasse. Ava argues that mediators can contribute to and possibly even cause impasse! I agree. As Ava notes, the impact of this research is very important for mediation. One of the main benefits of our field is that we bridge the theory-practice gap, and this is another interdisciplinary contribution.
Most importantly, Ava’s article has me rethinking one of my core assumptions about joint session. Ava and I are philosophically aligned in our approach to mediation, yet she does not have a default preference between starting in caucus or in a joint session
Currently, I never start with caucus and I teach that a great caucus (which I argue is best used as a forum for negotiation coaching) is best executed after an effective joint session. Prior to caucus, I want to facilitate the parties’ conversation to gather a base of information, to enable questions to and from each side, to help everyone see each other as people, and to demonstrate my impartiality.
Ava describes caucus as I would– a safe place to try out new ideas, resolve attorney-client differences, and help individuals move through the decision process. The key difference appears to be thinking not about caucus as an avenue for evaluating legal risk, but in helping people to share their human risks. In doing so, people will share their concerns in a way that reduces the risks to the lawyers, the disputants, and to her as the mediator. Ava even describes co-designing the mediation process with the lawyers to determine how to make the case mediate-able. As a result, caucus becomes a way to support party self-determination and a positive and meaningful joint session! One of the chief benefits Ava describes is the lawyers sitting back and letting the clients taking the lead in the mediation!
For those of us who value the communications aspects of mediation and worry about party self-determination, this article is very useful for rethinking how caucus can be a useful tool to support a joint session, if executed correctly. There are too many other great takeaways to mention… Ava’s voice shines through in her writing, and I very much enjoyed it.
Check out the article and then comment here to share your insights!
Thank you for posting about Ava’s article. I just had a chance to read it, and I wanted to commend her for taking an approach of drawing from a discipline outside of mediation and adapting its practices for our use. My favorite line in the piece was about adapting the salesperson’s practice of trying to advance the conversation toward the next step, because Ava noted that mediators cannot be as manipulative and should instead be transparent: “Now, sellers don’t tell their buyers what advances they have in mind, but in translating this sales concept into a mediation one, I decided that achieving trust and transparency requires me to tell all.” She then models how to invite those advances from parties and make them into an opportunity for everyone to consider together. This kind of adaptation from other disciplines is really helpful – and always an interesting read to see connections come in from other fields.