Empathy as One Cornerstone of Mediation


Daniel Merz, Ph.D.

Generally speaking, empathy is the ability to put yourself in someone else’s shoes for the purpose of valuing a person’s perspective and avoiding shame and judgment.  It’s the ability to identify what someone is thinking or feeling and respond to their thoughts or feelings with appropriate emotion. In mediation the use of empathic statements conveys to clients that the mediator has a respectful understanding of their thoughts and feelings (Gordon, 2015).

When dialog in the mediation process becomes stuck or unproductive, the use of empathic skills can lead to getting the conversation back on a more productive track. Daniel Goleman (1995) contends that empathy takes three forms, Cognitive, Emotional, and Compassionate. Cognitive empathy in Goleman’s view is the ability to understand another person’s way of processing information or thoughts. It is also referred to as perspective taking. A second form of empathy is what Goleman refers to as Emotional empathy. This is the ability to place yourself in another person’s shoes and identify with their feelings or emotions. Affective intimacy is another way of describing emotional intimacy. With Emotional empathy the listener is giving attention to the feelings being expressed behind a person’s verbal statements. With Compassionate empathy the listener is being moved to offer some form of help or support when she/he feels moved by the feelings and emotions being expressed by an individual. 

Example Dialogue

The use of empathy will sustain dialogue during conflict because it has a good chance of keeping parties engaged in the process (Eddy, 2017). On occasion a mediator will encounter parties that engage in high conflict behavior. There can a noticeable atmosphere of tension in the room. Empathic skills used properly can reduce tension and keep parties involved in the mediation process. 

Here are two examples of possible mediator statements:

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Digital Negotiating: Video-conferences

Negotiating by video-conference, such as Zoom or MS Teams, has recently become more common.  When reviewing the on-line literature on this subject it became apparent that there is less research available about how to conduct a video negotiation. But there are a few lessons that might be helpful:

  1. Video-conference negotiations are more similar to telephone negotiations than they are to email negotiations.
  2. In a video conference you are setting the stage and framing the image you want to convey. For this reason it is important to prepare the scene.
  3. Marshall Bright observed that the most important thing you can do to help video-conferences succeed is to figure out your strategy before you start.
  4. Technical difficulties are to be expected; practice using the conference apps before your negotiation begins. Don’t let glitches throw you off balance.
  5. Video increases the chances to send unwanted signals.

Helpful Hints:

These folks give some great basic Zoom advice. 

How to look your best on a video call.


Marshall Bright on How to Negotiate via Zoom

Katherine Shonk writes about On-line Negotiating

Marty Latz Explains the Benefits and Pitfalls of Zoom Negotiations

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Digital Negotiating: Email

We are often asked about negotiating using email. The questions are something like these: “Is it okay to negotiate through email?” “What is the best way to negotiate by email?” or “What are the difficulties in email negotiations?”

Listed below are three links to discussions about email negotiations. Although it is best to  read these essays yourself, here are some takeaways:

  1. Email negotiations tend to be more “hardball” so it is difficult to establish a collaborative atmosphere.
  2. It is common in email negotiation for misunderstandings to develop.
  3. Status and other equality factors are often neutralized in email negotiations.

The Links:

Watershed Associates on Email Negotiation

Harvard’s Project on Negotiation about the Pitfalls of Email Negotiation

Jack Nasher in “Forbes” on the Effectiveness of Email Negotiation

There are many articles about this subject on-line.  Good advice is available.

Here are three actions to consider when planning for and conducting email negotiations: Maintain civility, try to have some face-to-face sessions, make sure your internal discussions are off-line, and nail down agreements in writing.


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Mediation With Difficult Individuals

by Daniel R. Merz, Ph.D*

One of the more difficult personalities to face in mediation is when one of the parties exhibits an egotistical, armored, and intimidating personality. These individuals will often display additional character traits such as bullying, grandiosity, vanity, and a lack of empathy. Initially they can be charming and self-confident yet hidden behind this is a cold and calculating attitude. They may resist your best efforts. If you are not careful about how you manage the mediation process, this person will eventually identify you as an enemy to be defeated.

In a highly stressful mediation that involves a difficult personality, you will likely have a better  chance of success if you can avoid certain approaches or reactions. 

Avoid power struggles. You will be up against someone who has spent most of their lifetime getting their way. They use a win-at-all-costs mentality when they encounter resistance to what they want. Related to this self-centered attitude is the use of mental and emotional intimidation. In the face of this you need to know your weak spots. Because these areas of your personhood will be the first place the difficult person will strike. 

Resist the desire to retaliate or defend yourself. Assertive responses by the mediator to intimidation are often experienced as an assault on the person’s sense of specialness, grandiosity, and entitlement. The person using intimidation is probably experiencing you as a threat. See if you can identify and explore his or her feelings behind the defensive behavior. Give the person room to talk about the feelings behind his or her attack. Then you will be in a better place to reassure the individual that you are not there to judge or threaten him or her. In as much detail as you can, clarify your role as a mediator. Ask the person to describe his or her goals for the mediation. Continue reading

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The Term Sheet: What Is It and How Do We Use It?


Sarah Klahn,* David Belcher,** and Berton Lee Lamb

We often encounter “term sheets” in multi-party negotiations. Recently, we were involved in a negotiation that was going pretty well. The parties had agreed on a few things and seemed to trust one another. During a session, one of the attorneys suggested, “We seem to be making good progress. What would everyone think if we tried to develop a term sheet?” The attorneys in the room brightened up, but the other professionals looked puzzled. The discussion that followed made it clear that we needed to define our terms: What is a term sheet?

A term sheet is a written list of concepts, positions, or outcomes that could be included in a final agreement. It is especially useful in disputes involving many moving parts.  For example, in a dispute involving ground water and surface water users, a term sheet might suggest settlement concepts around the timing or rate of pumping, or the kinds of additional supplies to be provided to senior water users. A term sheet might also include  “the sleeves out of one’s vest,” which is a settlement element important to the other side, but of little value to the party proposing the concept.   

Complex negotiations often involve parties who don’t understand each other’s interests. Term sheets create understanding between parties, which makes negotiations more likely to be successful.  By structuring negotiations around a term sheet, the parties learn what is most important to one another. Moreover, stating settlement terms in concepts, rather than offers, allows parties to discuss ideas without fear of inflaming emotions.  In this respect, term sheets are similar to Straw Man Offers.  But term sheets are distinct from Straw Man Offers because they are written by mutual agreement among the parties, reflect the parties’ actual interests, and parties tend to construct term sheets later in the negotiation process.   

Proposing or agreeing to concepts in term sheets also builds trust between parties. In multi-party negotiations, a term sheet often leads to unexpected alliances on various issues, which can make negotiations more productive than if each individual party attempts to protect only its own interests (reflected in their own proposals and offers).  

In the example we started with, once the parties understood the idea of a term sheet, the discussions took on a more productive tone.  It still took many months of negotiation, but eventually the parties reached an amicable conclusion that satisfied—or dissatisfied—everyone equally.  


**Sarah Klahn is a water lawyer with Somach Simmons & Dunn who tries cases when she has to and settles them when she can. Her offices are located in Boulder, Colorado. www.somachlaw.com

**David Belcher is an associate with Faegre Drinker Biddle & Reath. He assists clients with various aspects of legal proceedings and trial preparation. His offices are located in Las Angeles, California. https://www.faegredrinker.com

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Final, Contingent, and Straw Man Offers


Berton Lee Lamb and Sarah Klahn*

Offers made in a negotiation can come in a variety of “flavors.” The flavor you choose should be selected to maximize development of mutual trust, create open discussion, and search for good results. In an example of how not to open negotiations, one of our colleagues likes to tell the story of a client he was representing who directed him to make what amounted to a final offer at the start of a negotiation. The instructions he received were something like this: “Make X as an offer and don’t budge until they make a counter offer within a specific range.” Our colleague made the offer; the other party did not respond. The negotiation went nowhere because he was not allowed to engage substantively until the other side responded within the narrow confines dictated by the client.

“Make this offer and don’t budge” is an example of a opening with a final offer. A 2019 blog post presents the pitfalls of starting a negotiation with a final offer. One of the major problems with starting with a final offer is that it prevents development of the mutual trust that is so important in negotiation. That is what happened to our colleague.

Although his client eventually gave him latitude to negotiate outside the confines of the final offer, by then he was not trusted. The negotiation failed. Continue reading

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NGA Wraps Negotiation Training in SoCal

Berton Lee Lamb, Susan K. Driver, and Robert H. Deibel

We recently returned from our latest round of negotiation training courses in Southern California. During early December, we taught Advancing the Art of Negotiation to personnel from three different federal natural resource management agencies. The focus of this course was on natural resource negotiations with emphasis on Federal Energy Regulatory Commission hydropower license proceedings.

We received numerous comments ranging from “This was an excellent introduction” to “I thoroughly enjoyed the class.” Participants in the course overwhelmingly reported that they would recommend the training to others. Continue reading

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Transition Management, Part 1: The Interpersonal Negotiation


Russell C. Sanders, Psy.D.

There comes a time in everyone’s life when a change produces a reaction that calls for a psychological readjustment. Change is a fact. Transitions are important in all phases of our lives. When we face a transition we have an emotional reaction. Then we must make an adjustment to the change that has occurred. How can we manage that adjustment in our closest personal relationships?

Example Transition and How it Was (Mis-)Managed

Jake just got a promotion. In addition to getting more money, the new position presented a challenge to Jake’s level of skill on the job.  He learned very quickly that there was a deficit in his skill-set that was going to require Jake to spend more time learning new programs and how to interpret data that he had never before seen in his work.  Not only was he going to earn more money, he was also going to have to spend more time away from his wife and their young family. His wife, Nora, was going to have to make some adjustments too. After a short time with Jake in his new position, Nora was experiencing resentment about Jake’s absence. He was often away from home and provided less child care. Nora couldn’t help but display her angst toward Jake which created more reaction from him. Continue reading

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Concerned about Communication? Look to Your Phone


Kara L. Lamb

Although we might not realize it, like it or not, we are all communicators. Did your neighbor ask you about your job and the latest product your company is producing? Did your mom wonder why your agency made that natural resource management decision? Did that man at church, or the checker at the grocery store ask what you do for work? When you answered those questions, you were a corporate communicator.

But how do you know you’ve said the right thing in response? Relax; it’s easier than you think. Just pretend you’re on the phone and use the same phone etiquette your mom taught you way back when. 

Continue reading

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Negotiating Interviews: Media Management Benefits from Negotiation Skills

By: Kara L. Lamb, June 18, 2019

Have you ever wondered what, if anything, media management has in common with negotiation? Consider Mike Klis introduction to media for the 2019 Denver Broncos rookies. When describing media relations to the future faces of the Broncos, Klis made three points: 

  1. Keep the media at a distance; be professional. 
  2. Working with the media is a “give and take.” 
  3. Be respectful because this is a professional relationship. 

Thinking about Klis’ lessons, the answer to the question about connecting media management and negotiation is pretty simple. In essence, a media interview is a negotiation.

First, a well-conducted media interview is one that acts and feels like a constructive conversation. That conversation includes the first principles of negotiation. You need to know the positions of the parties. You also need to know the interests and concerns behind those positions—especially if you are to facilitate any sort of constructive conversation. Be sure to assess the topic of the media interview in light of the positions and interests of the media representative.

Second, how is the reporter framing the story? As you prepare for the interview think about the media representative’s desired outcome of this conversation. Who has the reporter talked to and what perspectives, or “frames,” from other conversations are you hearing in the reporter’s questions? The information you share with the reporter, in light of these frames of understanding, will set the path for you to transition from the story currently being told to the story you need stakeholders and others to hear. Use this information to build talking points and short, but easy to understand, position statements. Knowing the reporter’s frame is how you prepare for an interview.

Last, mind your manners. Do not be on the defensive. Answer questions clearly and succinctly. Be sure to follow up on questions and clarify confusing statements the reporter might ask. In Mike Klis’ briefing he stressed the importance of not over reacting to what you might perceive as stupid questions. Over reaction will lead you to make statements you will later regret. Instead, acknowledge the reporter’s questions, concerns, and perspectives. And do not be afraid to use your answers to the questions as a way to lead into your own story, perspectives, and concerns. By engaging and packaging your message, you can facilitate the interview so your positions and concerns become part of the conversation.

These basics of negotiation, assessing, preparing, engaging, and packaging messages, are principles that also make for a good guide when interviewing with a reporter. Just as they help the facilitator or negotiator drive the conversation into a positive direction, they help you as the interviewee guide a reporter to the story you need told. 

Remember these basics. As a result, your interviews, as well as your other negotiations, will be smoother.

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