Words matter. So in basic mediation training we teach neutral words and reframing. But is our mediation lexicon stale and itself in need of reframing? As I pursued this question, I spoke with world class mediators, some of whom are mentioned below. The general consensus is that mediators use tired, stale words and there is much room for improvement. We need to bring innovation and creativity to our mediation lexicon. Mediator Eugene Moscovitch (California) emphasized that “words are really the only tools” mediators have. Mediation – a process that is supposed to be flexible and creative – has become static and predictable in both theory and practice. We need new words to move us in new directions.
The Oddest Words
While I personally like many of the words we are about to examine, consider what a human being with no knowledge of mediation might think about them. For instance, what does a “joint session” mean? Does one have a joint session while meeting with a chiropractor or an orthopedist, or does it involve copious amounts of marijuana?
Then we have a “private caucus,” which sounds sinister and sneaky, and may conjure up images of smoke-filled rooms and elections. We need to find alternative words and terms that enhance trust building and encourage confidence in mediation.
Out with “Joint Sessions” and in with “Learning Conversations”
In various parts of the United States, the joint session is vanishing or has vanished. Could reframing the “joint session” make it more appealing and understandable to the parties and prompt a second look by counsel? Let’s recast the joint session and label it as a “learning conversation.” Isn’t the gathering of advocates and decision-makers intended to be, in part, an opportunity to educate and learn? Almost everyone likes to learn, lawyers included. Everyone has conversations (although the listening part is often difficult for lawyers).
In a learning conversation, parties and counsel are not being asked to make opening presentations or speeches. In a learning conversation, participants add content, context and information. It need not be positional, oppositional or argumentative. Conversations offer the mediator an important role – to moderate the conversation, to create balance and, through inquiry, to seek refinement and education for all participants. The mediator may model the desire to learn by asking the parties to “help me understand” the components and complexities of the dispute better.
Alternatives abound. Denise Madigan (California) uses the term “conversation” frequently during mediations to make parties more comfortable and engaged, but prefers the term “business conversation.” David Hoffman (Massachusetts) prefers the term “plenary session,” while Susan Hammer (Oregon) uses “focused conversation” to overcome the fear of things getting wildly out of hand. Jeff Jury, referencing his small town upbringing, uses the terms “get together” and “meet and greet” to invite a constructive inquiry into “what are we going to do?”
Reframing the “Private Caucus”
Similarly, alternatives may make the “private caucus” less threatening and maybe even something more natural and inviting. Let’s consider words like “huddle,” “gather” or “confer.” A mediator might say “After our learning conversation, I may wish to huddle with each side to learn even more about this dispute and its impact.” “Huddle” is associated with United States football, but is also commonly used to suggest a meeting or to confer, and is a friendlier and warmer word than caucus.
A mediator quarterback in a huddle attempts to be the catalyst for good decision-making and strategic planning by the team with the ball. Unlike football, a mediator quarterback solicits ideas and allows the team to call the play. Like football, the mediator may assist the parties in identifying the “defenses,” or barriers to resolution in order to develop a better path towards solutions. The mediator quarterback might ask the parties to consider “changing a play” or rethinking a response to an offer.
“Gather” and “conference” are also alternatives that are more benign than “private caucus.” A mediator might say “at some point I want to gather with each side to learn more and better understand the dispute.” Or, a mediator might wish to host a conference. Jeff Jury uses the neutral verb “visit” and says “Now I’m going to visit with the people at the other end of the hall.” David Hoffman prefers “separate conference” or “confer separately,” since “when we confer, we are sharing ideas and information without the idea of partisanship baked into the term.” Mark Rudy (California) uses the term “private dialogue” in place of caucus and “group discussion” rather than joint session.
Is “Compromise” a Dirty Word?
Compromise has become a negative, almost dirty word – yet mediators continue to use it during mediation. Three alternatives without negative connotations are “accord,” “compact” and “arrangement.” These words suggest agreement without highlighting concessions, injury or damage. Thus, a mediator might say “if we work hard and develop options, we will hopefully reach an accord (compact, arrangement) at the end of the day.”
Bennett Picker (Pennsylvania) prefers the term “opportunity.” “Opportunity” suggests solutions not available in litigation or arbitration; psychological studies establish that no one wants to lose an opportunity. Tracy Allen (Michigan) and David Hoffman both use the term “solution.” Allen refers to solutions you can “live with.” Susan Hammer uses the terms “choice” and “trade-offs” instead of compromise. Hammer might say “you will have a choice to make at the end of the day and there are trade-offs the parties may make.”
Lightning Round: Avoid “Demand,” “Facilitate,” and “Weakness,” to Name a Few
Why do mediators ever use the word “demand” to describe what is in essence an offer? “Demand” is brusque and implies authority. This problem is actually easy to fix – just refer to all demands as “proposals” or “offers.”
Another mediation word that mediators should eradicate is “weaknesses,” as in “What do you see as the weaknesses in your case?” Most parties, and especially lawyers, feel vulnerable and defensive when asked about weaknesses. Substitute “worries” or “concerns” for weaknesses, to say “I understand you are very confident about your position, but is there anything that worries you?” A worry is a concern and not a capitulation. People are more forthcoming when describing their worries and concerns as opposed to their weaknesses.
Mediators should also stop using the word “facilitate,” as in “I will facilitate a process.” Most consumers of mediation services have no idea what facilitate actually means. More common words that may be substituted for facilitate include “assist,” “aid,” “promote” and “encourage.” A mediator might say “I will assist the parties in having a thorough conversation about the issues in dispute.”
Mediators may also want to consider reframing other mediation terms to use more comprehensible, non-threatening and encouraging words. At your next summit, happy hour or class exercise, consider beginning with: Risk; Impasse; Settlement; Impartial/Neutral; Closure; Empowerment; Reframing. Even “mediator” can be termed a “negotiation coach” or the traffic cop of the negotiations.
The mediation movement has reached a point where it needs more innovation, creativity, reevaluation and even transformation. Changing the lexicon of mediation may be the beginning of the next generation of mediators, academics and thinkers bringing new enthusiasm, energy and innovation to the mediation process.
© 2016 Eric Galton