Fisher Mediation
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Breaking Through to Your Most Difficult Clients and Opposing Attorneys

By Paul Fisher1

Breaking through to your most difficult clients and opposing attorneys changes the dynamics of the relationship. From the client’s perspective they will feel that you really understand and care about them. From the opposing attorney’s perspective the relationship can shift from adversarial to cooperative and even collaborative. There is more than a sense of being heard. It is a sense of being felt. Before you conclude this idea is too touchy-feely, understand that the process leads to success. This is much more than reflective listening. This pulls the other person toward you instead of pushing them away. When people sense they are heard and felt, they become less fearful of you and this begins to build trust. Then they will begin to listen to you. Continue this type of dialog and they will eventually hear you.

You can get the other person to feel you understand them, (to “feel felt” in the words of psychiatrist Dr. Mark Goulston2). This note is a paraphrase of Dr. Goulston’s tools:

  1. Allow the other person to vent nonstop without interruption or questions. After the other person finishes speaking, don’t reflect/repeat back what they said. Describe what emotion you heard the other person experiencing without naming/labeling. Attach an emotion to what you think the other person is feeling, ie. Angry, frustrated, taken advantage of.
  2. Say, “I want to make sure I understand what you are feeling. It sounds like you are angry and frustrated. Is that correct? If I don’t understand exactly, please tell me more because I want to completely get what you are feeling.” Let them reply without interruption.
  3. After they have replied either say, “Tell me more” (you want them to tell their whole story) or “How angry/frustrated/abused are you?” Wait for the reply. Do not share your similar story. This is not about you.
  4. Ask, “Just to make sure I understand, the reason you are so angry/frustrated (whatever the emotion is) is ___________. Let them reply without interruption.
  5. Then ask, “What needs to happen for your feeling of __________ to go away?

You will be showing extreme empathy which is very powerful to most clients, especially high conflict personality clients. This approach needs to be tooled down a lot in dealing with a difficult opposing attorney. There are similar results on a different scale. When the opposing attorney complains about her nasty morning experience in front of Judge X, you might reply, “What else did the judge say?” (Keep them talking and revealing.) Or, “You sound like you were very roughed up by a bully judge. This can take the heat out of what could otherwise become an adversarial conversation. During another moment of quiet you could take the conversation a step further in building a relationship and eventually trust by asking about his/her children.

By showing extreme interest and understanding, even being able to label what the client or opposing attorney is not expressing or is unable to express, you have begun building trust and a stronger relationship. Then they will listen to and hear you. No small feat! In fact it is magical.

  1. Copyright 2018 by Paul Fisher
  2. At a recent meeting and by sheer good fortune I sat next to psychiatrist Mark Goulston, MD. He had a book on the table in front of him and I asked if I could see it. I looked at the table of contents and the accolades on the back jacket and noticed that he was the author. I asked where could I buy a copy and he said I could keep his. “Just Listen”, published by American Management Association 2010, has been an invaluable tool for me in mediations ever since.