Communication, Decision-Making & Mindfulness Oregon Mediation Association Annual Conference November 7, 2014

Presentation by Nancy Neal Yeend

Copyright

© 2014, Nancy Neal Yeend. All Rights Reserved.

These materials, Communication, Decision-Making & Mindfulness, were designed and developed by Nancy Neal Yeend, and all materials, including the text and handouts, are intended to support the lecture and exercises for this presentation. No part of these materials may be circulated, reproduced, transmitted, or distributed for any purpose, in any form or by any means, electronic or mechanical, including photocopying or scanning, without the express written permission of the copyright holder.

Please direct inquires and requests to reprint to: Nancy Neal Yeend Silicon Valley Mediation Group 101 First Street, Suite 676 Los Altos, CA 94022 Direct line: 650/857-9197 Email: [email protected]

© 2014, NANCY NEAL YEEND.

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Table of Contents ESSENTIALS Overview ..................................................................................................................................................... 1-1 Mindfulness and Mediation ...................................................................................................................... 1-1 Benefits .................................................................................................................................................. 1-1 Distractions ........................................................................................................................................... 1-2 Technique Integration ............................................................................................................................... 1-2 Techniques ............................................................................................................................................ 1-2 Exercise ................................................................................................................................................. 1-2 COMMUNICATION Overview ..................................................................................................................................................... 2-1 Communication Styles .............................................................................................................................. 2-1 Exercise (handout provided) .............................................................................................................. 2-1 Exploring Styles.................................................................................................................................... 2-1 Questioning ................................................................................................................................................ 2-2 Types of Questions .............................................................................................................................. 2-2 Exercise ................................................................................................................................................. 2-2 DECISION-MAKING Overview ..................................................................................................................................................... 3-1 Decision-Making Criteria.......................................................................................................................... 3-1 Definition .............................................................................................................................................. 3-1 Exercise ................................................................................................................................................. 3-1 Option Generation .................................................................................................................................... 3-2 Strategies................................................................................................................................................ 3-2 Exercise ................................................................................................................................................. 3-2 RESOURCES Article: Avoiding Communication Disasters .................................................................................. Appendix A Decision-Making Criteria Worksheet ..................................................................................... Appendix B About the Presenter .................................................................................................................. Appendix C

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© 2014, NANCY NEAL YEEND.

1—Essentials One doesn’t discover new lands without consenting to lose sight of the shore for a very long time. André Gide, 1925

OVERVIEW Identify the primary benefits of integrating mindfulness techniques into mediation. Describe the link between mindfulness and communication. Discuss how distractions reduce the probability of settlement. Analyze at what point in the mediation process making this connection would be most beneficial to the parties. Compile a list of techniques that link mindfulness to communication and decision-making.

MINDFULNESS AND MEDIATION Perhaps an over simplified definition, but one that captures the essence of mindfulness is “...nonjudgmental awareness.”1 Those key words pinpoint the essence of “mindful” mediation: a new awareness of surroundings and the lack of pre-judging words or ideas presented by the participants. It is the ability to “... be mindful—to pay attention to something in such a way that distractions and intrusive thoughts are excluded.”2 BENEFITS: Integrating mindfulness techniques into the mediation process create benefits, not only for the mediator, but also for the participants. For mediators it promotes personal growth. There is an ever-increasing number of academics, who believe that including mindfulness into mediation training enhances a mediator's performance. In addition, mediation participants benefit from mindfulness, because it helps prevent them from “jumping to conclusions, clinging to positions, refusal to listen, distorted and/or unchecked beliefs, prejudice, …”3 When the mediator integrates mindfulness techniques into the process, it “... encourages self-awareness, and reception to new information...”4 Inevitably, when the parties are able to hear one another and set aside some of their preconceived thoughts and biases, they are more inclined to generate options, which increases the probability of a negotiated a settlement. When mediators incorporate mindfulness principles and strategies into their practice, the parties reap significant benefits.

1

Riskin, L.L., Awareness and the Legal Profession: An Introduction to the Mindful Lawyer Symposium, Rochester, NY, 2012. 2

Barry Winbolt, The Journal of Mediation & Applied Conflict, Edward M Kennedy Institute for Conflict Intervention, Ireland, Issue 1, Volume 1, 2014. 3

Ibid.

4

Ibid.

© 2014, NANCY NEAL YEEND.

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1—Essentials DISTRACTIONS: If mindfulness helps an individual to remain in the present and focused, what actually happens? Primarily, the myriad of distractions diminishes or disappears, thus permitting previously obliterated sights and sounds to register at a conscious level. Ideas and concepts can be entertained in an unbiased way. Mindfulness needs not be limited to mediation—it can be practiced throughout all areas of daily life. Developing skills and techniques to keep one's “mental motor-mouth” quiet, decreases distractions and increases the ability to listen nonjudgmentally. Listening non-judgmentally is a hallmark of mediation.

TECHNIQUE INTEGRATION TECHNIQUES: There are a number of fundamental skills that help promote mindfulness. Typically, these techniques are integrated into most mediation courses. They include, but are not limited to: communication, summarizing, reframing, and criteria identification. The broad topic of communication includes identifying primary communication styles, use of references to the five senses, eliciting information (question composition), speaker time orientation, and listening. The ability to listen non-judgmentally requires removing the filters of pre-conceived ideas, assumptions and biased thoughts. EXERCISE: With a partner, try to identify at least 10 skills and/or techniques that you already possess, and which enable you to create a “mindful” environment. The list may vary depending on the types of cases that you mediate and your mediation style. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

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© 2014, NANCY NEAL YEEND.

2—Communication When the eyes say one thing and the tongue another, a practiced man relies on the language of the first. Ralph Waldo Emerson, 1803-1882

OVERVIEW Identify the four primary communication styles. Distinguish between different types of questions and identify the type of information produced by each. Recognize how emotions can impact information provided and potential settlement.

COMMUNICATION STYLES Communication styles are very much like different languages. When two people have distinctly different styles: similar to unfamiliar foreign languages—they cannot understand one another. EXERCISE: Using the handout provided, determine your communication style: ________________

EXPLORING STYLES: There are no “good” or “bad” communication styles. Each style has benefits, and each can present challenges.5 Once your style is known, it becomes easier to hear other styles and to translate when different styles are spoken. Time orientation is a very important component of communication style.    

If intuitor is the dominant style, then the speaker is more likely to hear concepts, ideas and statements that stimulate the imagination. The speaker’s time orientation is future focused. If sensor is the dominant style, then the speaker hears pragmatic, direct and results-oriented statements. The speaker’s time orientation is the present. If feeler is the dominant style, then the speaker responds to empathetic words, understands the emotions and human interaction. The speaker’s time orientation is the past. If thinker is the dominant style, then the speaker hears analytical terms, data and lists. The speaker seems to have no preferred time orientation.

EXERCISE: How does mindfulness relate to understanding communication styles?

Poor communication, whether non-existent, insufficient or ambiguous, is a leading cause of conflict, so having the ability to hear all speakers permits the mediator to remain in the present. See Resources Section, Appendix A, Avoiding Communication Disasters, Yeend, 2014. For those who are unable to attend this presentation, a copy of the Communication Style exercise appears in this article. 5

© 2014, NANCY NEAL YEEND.

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2—Communication

QUESTIONING Developing ways to have litigants and/or their counsel provide sufficient information is always a challenge. Framing the questions in ways to either gather more information or terminate repetition are useful skills for mediators. TYPES OF QUESTIONS: Many different types of questions exist, and the preferred type for getting the maximum amount of information, is the open-ended question. Open-ended questions literally open the lines of communication and information is forthcoming. In mediation, individuals are not able to negotiate if they have insufficient information. Open-ended questions begin with who, what, when, where and how. Other powerful statements that increase the amount of information a speaker provides include the words “tell” or “describe.” Closed-ended questions may be useful when it is necessary to cut off a repetitive person or curtail a pleonastic speaker. Since closed-ended questions close down communication, their use should be limited. These types of questions start with the classic “is-are” and “did-do” phrase, which generally produces monosyllabic answers: “yes” and “no”. Mediators must also avoid questions that begin with the word “why.” These questions have a significant negative psychological impact, by placing the respondent on the defensive. These questions do not support mindfulness, and they create communication barriers and diminish the level of trust. Leading questions must also be avoided. The appearance of neutrality is negatively impacted, when a mediator uses leading questions. As the term implies, the participant feels that the mediator is making decisions for them, or trying to coax or even coerce the party into a particular settlement. Mediators need to engage the participants and also appear neutral. This is especially important when working with self-represented litigants, SRL. Research shows that SRLs require a more “active role” during the mediation process. When a mediator asks questions, prefaced by a statement that more information is needed to fully understand and appreciate the point the plaintiff or defendant is making, then a mediator's neutrality is less likely to be questioned. SRLs in particular appreciate the opportunity to explain or clarify, as part of their quest to feel they have been “heard.” EXERCISE: What are three good open-ended questions that would be useful in any setting? 1. 2. 3.

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© 2014, NANCY NEAL YEEND.

3—Decision-Making Once begun, a task is easy; half the work is done. Horace, Epistles, 201-8 B.C

OVERVIEW Identify decision-making criteria. Assess how understanding decision-making criteria improve mindfulness. Describe methods for reducing intractability. Analyze where these techniques are most effective, and when they should be initiated.

DECISION-MAKING CRITERIA An important aspect of mindfulness is to fully understand how one feels at any given time, and to appreciate that the subconscious mind can sometimes be “louder” than the conscious. When mediation participants are attempting to negotiate a solution, there are numerous factors amplifying a variety of distractions: emotion, time of day, temperature of the room, or bodily needs, such as food or to use the restroom, etc. In addition to the mediator having to monitor the entire environmental, emotional and other human elements, it is important to possess skills that will empower the participants to become conscious of those factors that influence their decision-making process. DEFINITION: Criteria6 are the factors or values used to make a decision. Criteria also facilitate the identification of basic or underlying interests and needs. Identifying criteria helps the mediator and the participants bring unconscious decision-making principles to a conscious state. For example, if you were going to buy a new car, most likely you would not walk into a dealership without some idea of the make, model, special features and the price. Those factors are the criteria that you will use to make a decision to purchase a car. When mediation participants make decisions, they use criteria to weigh the pros and cons of an offer. Will the money be paid this week or six months from now? The criterion is time. EXERCISE: With a partner, make a list of all the criteria that mediation participants have used to make decisions of whether to accept or reject an offer. 1.

6.

2.

7.

3.

8.

4.

9.

5.

10.

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The Merriam-Webster Dictionary, 2012, defines criterion (singular) as “A standard on which a judgment or decision may be based.”

© 2014, NANCY NEAL YEEND.

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3—Decision-Making

OPTION GENERATION Once mediation participants have identified their decision-making criteria, it helps them recognize some of their human needs, personal or professional interests and objectives. If the parties are willing to disclose and discuss their decision-making criteria with not only the mediator, but also with the other mediation participants, generating options becomes much easier. The result—the participants find a resolution that meets their unique needs. When disputants generate their own options and determine their own fate, they are more likely to carry out the terms of the settlement, and there is a lower probability of further legal action. STRATEGIES: If the participants are reluctant to discuss their decision-making criteria with the others, one technique that works well, when attorneys are involved, is to ask the question, “In your experience, what have your other clients done in similar situations?” The mediator is not asking the attorney to say what this particular client will do, but just offer what others have done. In addition to generating more options, there may be a psychological impact on the client, who is listening. People prefer making decisions when they know that others have done something similar. Another question that may reduce the chance of an impasse is, “What will make it easier for the other party to say yes?” Better yet, try a command, “Describe one or two ways that you believe this proposal could be improved.” These techniques may be more effective when given as an assignment for the parties to work on during caucus. Finally, a question that will help prevent a mediator from telling parties what to do, ask hypothetical questions. For example, “Hypothetically, what if your client did X?” “What if” questions prompt lawyers and their clients to be more forthcoming, because their response is not a firm commitment; they are just generating a potential option. Brainstorming is another appropriate application of criteria. Once criteria are identified it is easier to get the parties to generate options. Referring back to the earlier example of “time” as the criterion, people can discuss what “now” or “next week” means. It will then be easier for them to move on and discuss if the payment is a lump sum or spread out over time. Again, this exercise can be done in joint session or during a mediation caucus as an assignment. If the participants agree, the mediator can collect the lists and read off the possible suggestions. EXERCISE: Some of the ideas, examples and techniques that have been presented may be new, and others you may have previously utilized, but have since forgotten, or just never integrated into your repertoire. Based on today's presentation, what is at least one skill or technique that you will use in your next case? Try to identify three for good measure! 1. 2. 3. 3–2

© 2014, NANCY NEAL YEEND.

Resources

Avoiding Communication Disasters Nancy Neal Yeend

Reprinted with Permission, Plaintiff's Magazine, January, 2013.

© 2014, NANCY NEAL YEEND.

APPENDIX A

www.plaintiffmagazine.com JANUARY 2013

It pays to know which language style is understood the best – whether you are the speaker or the listener

Avoiding communication disasters BY NANCY NEAL YEEND

It is that time of year for making New Year’s resolutions, and I have one you may want to add to your list – thus avoiding costly communication mistakes. The following tips are designed to make your New Year brighter, and could even make you healthy, wealthy and wise. Well, maybe not the first two, but certainly wiser. Your words matter

You may be an eloquent speaker; however, if you are not speaking the language of your audience, no one will hear your message. There are four primary communication styles (languages), which are associated with how the brain links meaning and significance to words. Unless someone has an auditory impairment, people hear your words; however, if you are not speaking their language (communication style), your words have little relevance. Four communication styles have been identified: intuitor, sensor, feeler and thinker. Although these terms are the same as those associated with temperament and personality type, there are distinguishing characteristics. For the purpose of this article, only communication style is addressed. Individuals, who use the “intuitor” communication style, will hear and respond to words that relate to concepts, theories and ideas – words that stimulate their imagination. Therefore if you say, “I have an idea of how we can resolve this case,” the word idea resonates with the intuitor and your message is received. It is worth noting that intuitors have a future time orientation, so your message really registers if you say, “I have an idea of how we can resolve this case. Next week we can...” With these two sentences you have

used words that relate to ideas as well as the intuitor’s future time reference point. If you are speaking to “sensor” communicators, you need to use words that are direct, down-to-earth or pragmatic. Sensor speakers have a time orientation to the present, so statements like, “We are here today to settle this case,” or, “I think we can get it done without undue deliberation,” resonates with a sensor listener. Again, the sensor hears your key words get it done and undue deliberation, while the word today connects to their time orientation of the present. Those who are identified as “feeler” communicators seem to demonstrate the unique ability to link events to the impact on people. It is not that individuals who use other communication styles do not make the connection; it is that feelers are more likely to articulate emotions associated with these events. The time orientation for feeler communicators is the past. They are very interested in spending time during negotiations exploring what things were like before an event occurred. Some refer to feeler communicators as “conflict archeologists.” Word choices that resonate with feelers may include, “I appreciate your concerns over the loss of your job, and we want you to take this opportunity to share with us how your life has changed.” Again, key words like concerns and share have a human connection, so important to feeler communicators. The feeler’s time orientation to the past is captured with the words life has changed. It is important to remember that if feelers are not permitted to emote, they will keep repeating, and their brain will keep running the tape of what they want to say, thus, they will not hear anything you are saying. Listeners who use “thinker” communication language tend to like data, facts and figures. No dominant time orientation has been associated with this

communication style, so thinkers seem to hear all time references equally. A thinker communicator will get your message when you use phrases like, “Please review the data provided by our expert, and let me know your thoughts.” Communicators with the thinker style respond to words where they can demonstrate their ability to take in and process data. They rely heavily on detailed information, so when talking to a thinker, using lists or referencing things by numbers, such as, “There are three key elements,” is beneficial. Based on the above, it is easy to see why some people just talk past one another – never seeming to hear what the other is saying. You need not panic and think this is just too complicated to be useful. All you need to do is listen to people speak. Do they use words that relate to the future, concepts or ideas? If so, they are intuitors. If they speak about the past and discuss how they feel about an event, then they are more likely feeler communicators. The simple key to get people to listen to what you have to say, is speak their language. Incorporate a few words from several communication styles, and people will more likely get the message you are sending. You may wish to consider taking the two-minute Communication Style Indicator (located on next page) to determine your dominant communication style. The indicator also identifies the communication style that you are least likely to hear. Improving your persuasion skills begins with speaking multiple languages, which means honing your listening skills to hear your least preferred style. Depending on the setting or context, you are able to use all communication styles; however, you are more likely to use one dominant style at work, say thinker, and then use a different style at home, like sensor.

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Communication Style Indicator

Directions: Read each question, and rank the four responses for each question before answering the next question. Begin by placing a 4 next to the response most like you, most of the time and a 1 next to the response that is least like you, most of the time. When you have marked the two extremes, then go back and indicate which responses are 2 and 3. As you read the questions, read the question with only one context in mind: office, home or with a stranger. Important: only take two (2) minutes to rank the four responses for all five questions. Go with your first impulse, and do not analyze. You are more likely to get an accurate indication of your style. 1. When I make decisions with others, I am likely to _____ a. discuss what was done before and consider how people felt.

_____ b.explore concepts and anticipate how things will be done in the future.

_____ c. clarify present circumstances and make quick decisions.

_____ d.analyze all the facts and options.

2. When communicating with others, I am _____ a. annoyed when people speak before they think.

_____ b.frustrated when people rehash old issues and take no action.

_____ c. impatient when people seem unwilling to explore options and possibilities.

_____ d.disappointed when people do not deal with emotions.

3. When confronted by people who hold a different point of view, I am likely to _____ a. explore possibilities and encourage brainstorming.

_____ b.explain the logic of my perspective and evaluate theirs.

_____ c. consider current issues and practical ways to reach agreement.

_____ d.discuss the events that led to our different views and talk about why we feel the way we do.

4. When working on a project, I am likely to _____ a. find ways to involve everyone in satisfying interactions.

_____ b.develop a practical, realistic plan of action.

_____ c. research data, analyze, and develop logical and rational ideas.

5. When I am in a discussion, I am likely to

_____ a. focus on present issues and the practical steps to resolve them.

_____ b.look at the relationship between events and find innovative ways to move forward.

_____ c. note the emotions involved and ask people how they feel about what is happening.

_____ d.analyze the issues, remain objective and consider options.

Getting the Totals

To obtain an approximate indication of your primary communication style, enter the number you wrote next to each response, and then add to get your totals.

Intuitor Q.1 b.____

Sensor c.____

Feeler a.____

Thinker d.____

Q.3 a.____

c.____

d.____

b.____

c.____

d.____

Q.2 c.____

b.____

Q.4 d.____

b.____

Total ____

____

Q.5 b.____

a.____

d.____

a.____

____

a.____

c.____

____

Style Indicators

If you have a “high” number in one column, a total of 14 to 20, this indicates your dominant communication style. A “low” number, a total of 5 to 11, indicates the communication style that you are not likely to listen to, and you will discount the information that speaker provides. If you have the middle zone for all four styles, totals of 12 to 13, then it means for the context you had in mind as you answered the questions, you may not have a dominate style. It could also mean that this indicator had too few questions to identify your communication style. (This document was designed by Nancy Neal Yeend and Bonnie Best. ©Nancy Neal Yeend. No reproduction allowed without written consent of the author.)

_____ d.look at the “big picture” and create ways to be innovative. It goes without saying that you need to listen and translate if people are not speaking your language. For example, if

you are a thinker communicator, which many attorneys are, and you are listening to a feeler speaker, it is not helpful for you

to think, “I wish this person would stop whining!” You may need to say, so you lock in their statement and at the same

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time indicate to the speaker that you heard what was said, “I understand you are dissatisfied with the manner in which you were terminated, and that you feel that your service to the company was not appreciated.” The first half of the sentence reflects more of your thinker vocabulary, while the words in the second half of the sentence relate to feeler vocabulary. You just translated feeler emoting into thinker by using enough humanistic words to demonstrate that you got the message. The same technique works if a sensor is speaking with an intuitor. The sensor is in the here and now, while the intuitor is dreaming up a variety of options. The sensor may say something like, “Why are we spending so much time listening to these hare-brained ideas?” The sensor wants to make decisions now and not speculate about possibilities, while the intuitor’s creative mind is spinning with a number of ideas. One way to get the message across to the sensor, might begin with “Perhaps by taking a bit of time to be sure that all options are on the table, we can actually save time, and be out the door sooner, knowing we have not missed something important.” Since the sensor wants things done quickly, pointing out the process will not take too much time and time will be saved, resonate. Likewise, the intuitor hears all options and that nothing will be missed. Time differences magnify the disparity between communication styles. This is especially true between intuitors (future) and feelers (past). No one needs to talk past someone who has a different style. Just adding a word or two will make all of the difference. The intuitor can get the thinker to hear ideas, so long as the intuitor supplies some facts or data. Similarly, the sensor can hear the feeler by bringing the feeler to the present. Just saying something like, “You have carefully told me how wonderful and caring your husband was when you were first married; now please tell me how you want your life to look after the divorce.” The first half of the sentence includes words that resonate with a feeler communicator, while the second half of the

sentence uses the word now to bring the feeler forward to the present. The statement concludes with after the divorce, which provides a further nudge to move the feeler from the past and into the future! Use your senses

The human brain records information and experiences, which form a database, in one of five sensory areas: auditory, visual, kinesthetic (touch), olfactory (smell) or gustatory (taste). Generally, people have a preferred sensory system, and tend to think and speak using those sensory words. As with any language, there are regional dialects, so it may be helpful for you to think of sensory words as local jargon. Lucky for you, most people typically only use one of three sensory systems: auditory, visual and kinesthetic. Olfactory and gustatory are used in a few regions outside of the United States, so identifying sensory words is that much easier. So much for theory, how can you use this knowledge to your advantage? It is very easy to identify sensory speech. For example, a person who is a visual learner and stores information associated with sight will say something like, “I see what you are saying.” On the other hand, a person who takes in information by listening and links information to sound (auditory) will say, “I hear what you are saying.” A kinesthetic speaker is a tactile learner, most likely a chronic note taker, who stores information associated with touch. The kinesthetic response would include something like, “I get what you are saying.” It is important to understand that when your sensory system is different from those of the people you are speaking with, although they may hear your words, two important things happen: they are more likely to discount what you are saying, and they are less likely to retain the information you provide. You will need to speak the local dialect, and use the listener’s sensory frame of reference if you want to persuade. Mastering this skill may be accomplished in two easy steps. First, identify

your dominant sensory preference. Are you auditory, visual or kinesthetic? Of the following three lists, which group of words and phrases are you more likely to use? 1) That rings a bell; I got an earful; That sounds like a winner; I got it word for word; and That’s just idle talk. 2) He is shortsighted; It appears to me; I know beyond a shadow of a doubt; In light of what you just said; and That’s a horse of a different color. 3) I will pull some strings; They had a heated argument; Keep your shirt on; That’s what it boils down to; and I will get in touch. Hopefully, one of the groups includes more of the words that you typically use. If the first group contains more of your phrases, then your dominant sensory reference is auditory. If you preferred the second group, then your predominant style is visual. Finally, if you preferred the third group of phrases, then your frame of reference is kinesthetic. Everyone uses all three sensory references; however, for most people one sense will dominate. Listen to the words you use for a day, and you will soon identify a sensory theme. Listening to others is step two. You may feel a bit awkward in the beginning, but within a very short period of time you will pick up sensory cues. Initially practicing the techniques outside the office will build confidence. For many it is a revelation to go home and listen for sensory words used by family members. By applying these skills at home, teenagers may even learn to listen to their parents, and just inserting the appropriate sensory word can save marriages! Final thoughts

Several factors influence communication style and sensory preference, including profession and technology. In one study, first-year law students were tested to determine their dominant communication style. They were tested a second time after they completed law school, and the results were striking. Entering law school the communication

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style percentages reflected the national average for type; however, after law school the majority of students were thinker communicators. It appears that the reward factor for being a critical thinker in law school was substantial enough to change the students’ communication style. Sensory preference has changed over time as technology has evolved. Early studies showed that the majority of people used auditory sensory references. Pretechnology, people just listened to one another, and then came the radio and telephone, so auditory remained king. With the advent of movies, and then television, there was a shift towards visual. With the universal use of computers, phones with applications and other handheld devices, kinesthetic references are gaining ground.

Listening to communication styles and sensory word choices is actually big business. There are those who have been known to hire consultants to listen to judges, and to determine their communication style and sensory preferences. Possessing that type of information allows an attorney to write a brief that may be much more persuasive to the judge. Conclusion

New Year’s resolutions come and go, but this communication one should be here to stay. Once you integrate these skills into your conversations, you will get your message across, be more likely to persuade, and even improve your own listening skills. This could make you healthy, wealthy and certainly wiser. Happy New Year!

Nancy Neal Yeend is an experienced, nationally recognized dispute management strategist and mediator. As a strategist, she has designed court-connect mediation programs, inYeend cluding Maryland’s first appellate mediation program; and she evaluates existing court ADR programs. As a mediator, Nancy handles real estate, employment, partnership and related business cases. She serves on California’s First and Third District Counts of Appeal Mediation Panels. She co-founded Silicon Valley Mediation Group in Los Altos. Nancy has served as a faculty member at the National Judicial College for 19 years, and has helped train over 5000 mediators. Her publishing credits include what some consider the seminal study of appellate ADR in state courts.

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Resources

Decision-Making Criteria Worksheet DEFINITION: Criteria7 are the factors or values that are used when making a decision. Criteria also facilitate the identification of basic or underlying interests and needs. Identifying criteria helps the mediator and the participants bring unconscious decision-making principles to a conscious state. EXAMPLE: If you decide to buy a computer, you use criteria to determine which features best meet your needs. Questions you ask yourself may include: "Do I want a laptop or desktop?" "What size memory does the computer need?" "What software is included?" The criteria that are implicit in the preceding questions include brand or model, memory and economics. EXERCISE: With a partner, list criteria that you think most mediation participants will use to make a decision. Remember that plaintiff and defendant, and client and counsel criteria may not be the same. The type of case may also influence criteria: family, employment, personal injury, intellectual property, construction, etc. TEN COMMON TYPES OF CRITERIA: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

7

The Merriam-Webster Dictionary, 2012, defines criterion (singular) as “A standard on which a judgment or decision may be based.”

© 2014, NANCY NEAL YEEND.

APPENDIX B

Resources

The Presenter Nancy Neal Yeend is a dispute management specialist, who maintains a national practice that includes mediation, training and dispute management system design. She mediates cases involving real estate, construction, employment and a variety of contract and business matters. Nancy serves on several mediation panels, including the California First, Third and Sixth District's Court of Appeal; and Key Bridge Foundation, mediating ADA cases emanating form the Justice Department. Nancy serves as faculty at The National Judicial College (20 years), and formerly taught ADR at San Francisco Law School in California and Stetson University College of Law in Florida. For over a decade she taught how to mediate intellectual property cases at University of New Hampshire School of Law (formerly Pierce Law) in Concord, New Hampshire. Nancy writes extensively on ADR topics, including mediation, negotiation, ethics, summary jury trial, and how to create court-connected ADR programs. Based on her national study of appellate ADR programs, Nancy created Maryland's first appellate mediation program, and she evaluated and re-designed the Nevada Supreme Court’s ADR program. Another example of her ADR projects included creating a design for Superior Court of California County of Solano, enabling the court to provide mediation, arbitration, and early neutral evaluation to litigants. In addition, the court’s Small Claims Mediation program was expanded to include mediation of Small Claims case appeals. Although Silicon Valley Mediation Group's primary office in California, Nancy works nationally, and she anticipates opening an office in Oregon in early 2015.

APPENDIX C

© 2014, NANCY NEAL YEEND