By Charles M. Newman

Mediation, with all its nuances and complications, can be a tricky process.  After all, human nature is such that when we feel cornered, particularly by someone with whom we’ve shared an emotional or financial attachment, our first instinct is to go into “fight or flight” mode.  Fight-or-flight can be detrimental to arriving at a fair solution for both parties as tensions run high.  Words become loaded with insinuations, arguments over petty things are escalated, and each party feels as if he or she has been victimized.  Often, the increasingly tooth-and-nail fight leaves the real issues far behind and degenerates the “discussion” — if it can even be called that — into an urge for some sort of personal justice unrelated to either the situation or its resolution.

Is there any easy way to stop this in a mediation?  There certainly are proven formulas for avoiding that descent.  One is so simple and effective that it almost seems like magic.  Applying it begins with three simple words: “How can we….”  When one or all parties in mediation begin with those words, remarkable things can happen.  Pathways open up that weren’t seen before.  Fight or flight turns into Think and Link.  In less than a second, a defensive stance can turn into teamwork and cooperation.

These three words instantly, and quite naturally, convey a willingness and eagerness to cooperate and resolve the issue at hand.  You can’t attack when you start by saying, “How can we….”  And this is bi-directional.  You don’t feel as if you’re attacking, and the other person knows you’re not attacking.  On the contrary, you’re inviting.  And the thing you are inviting is cooperation and joint thinking about a problem you share with the other person.  There’s not a drop of “weakness” in those three words.

To illustrate the point, let me use this scenario as an example.  When Alice asks, “How can we…,” Zoe can respond in one of two broad ways.  She can take Alice at her word and start thinking about how to solve — or at least to reframe or reconsider — the problem that Alice articulated in the words after those three.  In other words, Zoe cooperates.  Or, Zoe might try to avoid responding to Alice’s words by rejecting, or at least parrying, Alice’s opening.  Zoe avoids.

Suppose Zoe chooses the former reaction, to cooperate.  I’d like to suggest that this is what happens far more often, both in life generally, and certainly when the parties have already agreed to mediate.  One reason is because the alternative, avoidance, is very hard to do without being obviously, blatantly rude.  If Zoe cooperates, then the two of them are no longer fighting with each other.  Now, they’re not focusing on the other person.  Rather, they’re addressing, together, a common enemy, which is the dispute they have.

But it’s true, sometimes people will avoid the “how can we…” invitation and not take up the other person’s offer.  What happens then?  At least two things.  One, Alice has unmistakable proof that Zoe is avoiding.  Two, Zoe has unmistakable proof that Zoe is avoiding, which is something Zoe might not have actually understood before.  Or, Zoe may have a better way to frame the question, which she will almost certainly propose to Alice as her response.  If Alice has been genuine in asking, “How can we…”, then Alice has to seriously consider what Zoe says.  Now Alice and Zoe are focused on defining the problem.  That’s not fighting with, or avoiding, the other person.  On the contrary, it’s teamwork in facing whatever differences they have.  In a surprising number of cases, parties are shocked when they finally realize that they hadn’t known what the fight was actually about, at least from the other person’s perspective.

When you ask, “How can we…,” you are literally asking for help in figuring something out.  You have a mediation partner, not a conflict foe.  You are demonstrating that you do not feel you must dictate a result to the other side.  You are showing that you are not only open to any good ideas, you want everyone to think of good ideas.  When Alice shows that openness and willingness, she is inviting Zoe to join her in openness and willingness.  Remember, the goal of mediation is for the parties to cooperatively figure out resolutions that work for both sides.  Using the words “how can we…” turns the stated intent to work together into something more than lip service.

I called the three words “almost magic,” but they’re not a simple incantation.  When you say those words, you have to mean them.  You have to be secure in your own thinking, be clear on the issues you know you need help with, and be truly open to thoughtful suggestions from others.  “Abracadabra,” they ain’t.

I’m indebted to some students at Cardozo Law School in New York City for the germ of this article.  I judged a Negotiation Competition there.  The competition was about negotiating a business deal, not mediation, but the same concept works in both situations.  At the conclusion, the judges were asked to make general comments and observations for the benefit of the students.  I had an opportunity to think broadly about what I had just watched in a series of mock negotiation sessions.  I realized that progress was most often made when one team explicitly asked for help in coming up with ideas.  When it was my turn to speak, it just came out as, “Probably the three most powerful words in negotiation are ‘how can we…’.  Think about how you empower the other side to resolve a mutual problem when you just ask for their help.  You’re saying, ‘Let’s do this together.’”  Not a bad start to end any conflict or dispute.

Charles Newman has worked diligently as both a lawyer and mediator to resolve conflicts and conclude transactions to the maximum benefit and satisfaction of his clients. For an appointment with a skilled lawyer, mediator and arbitrator, call Charles M. Newman at (212) 332-3321 or visit www.newmanlawmediation.com