Mediation and the power of words
In December 2024 I had the privilege of attending Scottish Mediation’s annual mediation conference. The conference is somewhat of a yardstick for mediation activity and practice in Scotland. It attracts mediators from across sectors – employment, workplace, commercial, family, community. This year was no different, with attendees gathering in the iconic V&A Dundee. The theme was “The power of words”, an apt reminder for all practising mediators.
One session looked at this theme in detail, starting by reviewing hypothetical emails and letters from lawyers. Lawyers are often criticised for a failure to use plain English. These examples were no different, with overly complicated and lengthy drafting. There was widespread agreement that not only was this sort of language unnecessary and unhelpful, but it failed to get to the heart of the matters in straightforward terms. Less may often be more.
Many mediators have a professional background as a lawyer – the last CEDR Mediation audit (see Tenth-CEDR-Mediation-Audit-2023.pdf) reported that 67% of “advanced mediators” i.e. survey participants who described themselves as reasonably or very experienced, were qualified lawyers. (Although a sizeable group of successful mediators with a wide range of professional backgrounds was also identified, including accountants, construction and workplace professionals, business consultants and managers.) Regardless of background, the message was clear – the power of words requires mediators to use language well.
This made me reflect on my own use of words in mediation and how important they can be. I’ve since turned to thinking about what this means in practice.
- Words are important from the very start. The framing of a dispute may affect parties’ perceptions from the outset. The words used to summarise parties’ positions and set out the disputed issues, can affect where parties think they, the other side and the mediator sit and what views have been taken – whether or not that is correct. Impartial and clear language is essential. Mediators need to avoid a perception they are siding with the other party, whilst still testing a party’s position and helping them to explore its strength and weaknesses.
- We’ve all seen matters escalate because of a poor choice of words, or be calmed from a careful of them. Importantly, this does not mean shying away from the difficult things that need to be said, by either the parties or the mediator. Quite the opposite – a mediator needs to encourage the most difficult things to be said and said well – including their own words.
- Re-wording a party’s language can be a useful tool – provided that the party does not feel the importance of their views is being reduced or neutralised. This is often called reframing and involves choosing different words to describe the same point. For example, a mediator can hear aggressive language, then re-frame to put it more constructively to the other side, whilst not underplaying the reasons or strength of feeling behind it. Reframing can also be used to explore what lies beneath a statement. Generalised allegations of blame are unpicked and specific details worked through.
- A mediator will work hard to understand the dynamics of a dispute, but they will not know everything behind what is said. For example, a separate session at the conference explored the complexities of mediating family business disputes. These are commercial disputes, with layers of additional complications. Sometime years’ worth of family tensions are tightly bound with the development of and the future of a business. We heard about the successful pairing of a mediator and family business advisor in some of these disputes, where the mediator’s role and focus on good communication (by all parties), was more important than ever.
- The need to speak well, sits hand in hand with the need to listen well. One of the benefits of mediation is the opportunity for parties to speak and to be heard, more so than in some other forms of dispute resolution. The details which emerge are critical and should be listened to carefully. Active listening is one of the first skills that a mediator learns and it remains essential, not a nice-to-have. More than once a seemingly passing reference by a party has given me an important insight into their thinking. It may have been a casual mention of something which was in fact driving their position. Or their words referring to a particular time or using a particular tense (their temporal frame of reference), which has shown me where their focus is.
- Lastly, we can all use the power of words wisely. A number of young mediators and mediators-to-be attended the conference, including primary and secondary school peer mediators from Auchinraith Primary School and Auchmuty High School. Their knowledge and use of mediation skills was impressive. They also reminded us that how we communicate and using our words well is an important life skill, in and out of the mediation room.
Jane Fender-Allison, Knowledge & Development Lawyer & Mediator, Burness Paull LLP