Competent, experienced lawyers can agree upon settlement values. Other frequent mediation participants readily comprehend the benefits of settling. We mediators, I believe, earn our money by helping the person — plaintiff or defendant — for whom mediation is a one-time or rare event.
In mediation, we ask people to give up their “day in court.” Yet, people want to tell their stories. They want to feel heard and understood. Making people feel understood is the critical first step, which separates the best mediators from the rest.
VECS is the acronym for validate, empathize, clarify and summarize. The late Justice Betty Roberts was a master of VECS. Open-ended questions allow a person to talk about what THEY want to talk about. When allowed to talk, most people (non-lawyers) do not start talking about legal precedents or recent jury verdicts; they talk about what’s eating at them. People want to unload about the injustice of being fired or the injustice of being legally extorted by a disgruntled former employee. People want to talk about how hard they work and how they are suffering. People want to tell me why the adverse party is unworthy.
Betty Roberts was excellent at letting people express their thoughts and feelings FIRST. To be successful, both sides must feel like today – this mediation – is their “day in court.” Justice Roberts and the best mediators give parties their “hearing” through skillful listening / VECSing. Once people feel heard, (1) they can address their other interests, (2) they can comprehend the opportunities afforded by mediation, and (3) they can “let go.” For many people, emotional release is a prerequisite to a legal release.
VECSing also builds trust. People do not know the law. They rely on their lawyers, as reinforced by the mediator. If the mediator connects with the parties through VECSing, then people will trust the mediator, later, when it is time to help them “reality check.”
By contrast, as an attorney, I once represented a woman who simply walked out of a mediation. The mediator had skipped the step of empathetic listening. He omitted the trust building. Instead of looking her in the eye and encouraging her to tell her story, he sat back and paged through his notebook as he recited some of defendant’s points. Within the first 15 minutes, the mediator used legal jargon as if my GED-level client would understand. Even if she had been a law student, the mediator’s words were as likely to take root as tossing garden seeds onto a frozen mountain lake for two reasons. First, if people are corked up with emotion or itching to tell their story, then they are not listening. Second, when a client does not connect with a mediator, she does not trust him.
The more mediation becomes routine to attorneys and mediators, the higher the risk that we will skip or gloss over the building blocks for successful mediations. Attorneys must remember to prepare each client thoroughly. Mediators, too, must determine what each side needs to achieve closure, both emotional and legal. For mediators, that starts with giving the parties his or her undivided attention, letting them speak, asking clarifying questions, and summarizing in a way that makes each person feel like he or she has been truly understood.