Discover your Listening Villain
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Podcast Episode 035: Listen first, come up with the solutions later.

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Lise Barry is an expert meditator and helps to resolve complex and frustrating disputes in society and in the workplace. You will learn how to create a listening process that is neutral and productive for all those involved in a dispute where they feel no one is listening to them.

Lise is a Senior Lecturer and Director of Learning and Teaching at Macquarie Law School and came to the law from a
background working in mediation and Youth Justice Conferencing. As a nationally accredited mediator working with the NSW
Attorney General’s Department, Lise mediates disputes ranging from neighborhood and family law disputes through to commercial and workplace disputes.

Lise is also a member of the NSW Guardian Ad Litem panel, representing people who lack the capacity to
instruct a solicitor or to represent themselves in NSW Courts and Tribunals. Lise currently teaches courses in Legal Ethics and
Alternative Dispute Resolution.As a foundational co-convenor of the Australian Research Network on Law and Ageing (ARNLA),Lise collaborates with colleagues around Australia contributing to research on legal issues of concern to older Australians. Lise is also a member of EMAN – ‘Elder Mediation Australasian Network’.

Lise stresses the importance of creating a neutral, listening environment for every mediation session for conflict resolution. Lise is not the judge and does not make decisions for the two parties, but moderates the conflict. She allows for them to break down their rehearsed stories and built up anger and work something out between themselves. Lise is process focused, not outcome focused.

A lawyer’s client may have already decided what resolution they want and it may mean they go to court unnecessarily. Lise explains how a lawyer needs to listen to the client, to get to know the problem first, before just coming up with a solution.

Tune in to Learn

  • Why you may need to feel listened to, before you can listen to someone else
  • How to uncover the underlying issue, not just deal with the present conflict
  • The importance of preparation to listen for long periods of time
  • How to prepare a space that is conducive to listening
  • How listening can bring release from entrenched conflict

Transcript

Episode 35: Deep Listening with Lise Barry

Oscar Trimboli  

Hi! I’m Oscar Trimboli. This is the Deep Listening podcast series designed to move you from an unconscious listener to a deep and productive listener. Did you know you spend 55% of your day listening yet only 2% of us have had any listening training whatsoever, frustration, misunderstanding, wasted time and opportunity along with creating poor relationships are just some of the cost of not listening.

Each episode of the series is designed to provide you with practical, actionable, and impactful tips to move you through the five levels of listening. I invite you to visit oscartrimboli.com/Facebook to learn about the five levels of listening and how others are making an impact beyond words.

Lise Barry:                              

There’s so many costs. There’s cost to society. Courts that are full of people that shouldn’t be there. There’s cost to the client when they go down a particular track. They invest time and money in a particular form of dispute resolution. For instance, if they start preparing for litigation once you’ve thrown a certain amount of money at it, you can’t turn back.

They’re not ready to listen to lawyers until lawyers have listened to them. None of us are. We need to really feel like we’ve been heard before we can listen to somebody else because if I don’t think my lawyer understands me, then I can be butting heads with them. I really need my lawyer to understand me first and to have listened to me well and to show that they get where I’m coming from. Then, I can be more receptive to the kinds of solutions that lawyer’s proposing.

Listen first. Come up with solutions later. That is so hard for people to do.

Oscar Trimboli:                   

In this episode of Deep Listening: Impact Beyond Words, we hear from Lise, a lecturer and mediator, an expert in dispute resolution. My favourite parts of this interview is the way Lise bends the time to create a neutral environment for every party to be heard during a mediation.

I love the way that Lise listens not only to what’s being said equally listening to the silence. Listen out for the story about the elderly woman who falls over her temporary fence on a construction site. You’ll be quite surprised what the result is because Lise had set up a listening environment not only for the elderly lady who fell over, but for the construction company as well. Lise spends some great time talking about the impact of English as a second language and how that impacts people do while they’re trying to listen to others.

Explore the impact of multiple negotiating styles and what that brings to a workplace and beyond. I’m sure you’re going to love this episode. Let’s listen to Lise.

 

Lise Barry:                              

Sean would know me as a dispute resolution teacher at Macquarie University as well. It’s a very interactive course. We do a lot of exercises. It can be for students a refreshing change from heavy theory and doctrine to get their hands dirty and have a go at exercises and for some of them in terms of listening, it’s the first time they’ve ever really thought about listening as a discipline and as something that you can get better at and train yourself at and practice.

That’s what I really like, but often, they don’t appreciate what they’ve learned until later when they can use it in the workforce. It’s not unusual to hear from students at two, three, five years later. They’ll flip me an email and say, “Hey, Lise. I just wanted to let you know today I used that thing you told us about.” That’s really rewarding.

Oscar Trimboli:                                                      

What do you think distinguishes good solicitor from a great solicitor when it comes to listening?

Lise Barry:                              

I think it’s the extent to which they understand their client, the extent to which they can step into their client’s shoes and help that person to uncover what it is they really want in a particular legal context. If it’s a contract negotiation, what’s the endgame not just what should this contract look like, but why this contract, how this contract, how long, what’s going to happen in the future in relation to this contract.

Thinking about their client’s business as a whole or their client’s personality or family depending on the context, so I think it’s really about how well they know their client. Anyone can learn the law, but not all lawyers are good with people. Not all lawyers can have that real gift of understanding what their clients want to need, but that’s where repeat business comes from.

Oscar Trimboli:                                                      

What do you think that cost is when lawyers don’t listen?

Lise Barry:                                                                 

There’s so many costs. There’s cost to society, courts that are full of people that shouldn’t be there. There’s cost to the client when they go down a particular track. They invest time and money in a particular form of dispute resolution. For instance, if they start preparing for litigation, once you’ve thrown a certain amount of money at it, you can’t turn back because you don’t want to lose that investment. You need to invest the time.

I think lawyers need to invest the time very early to really diagnose what the problem is and what the best solution is going to be and work with the client on that, but I think from it, there’s something going on from a client’s perspective to in terms of how they think of lawyers and what lawyers do. A lawyer solves my problem or fixes my dispute. If you go to a lawyer with an expectation that they’ll take the matter to court or litigate, you might not want to pay that lawyer for some other form of resolution. You might not see the value. Lawyers also need to be good in explaining their strategies and why they’re doing something that takes time to …

Oscar Trimboli:                   

When you think about lawyers not listening, what do you think clients are listening to when the lawyers are speaking?

Lise Barry:                              

Sometimes, I think it’s a little like what I was just saying. They’ve decided already what sort of solution that they want. That might be because they don’t know the possibilities. The stories that the clients have told in their head are about a particular way of resolving things. They’re not ready to listen to lawyers until lawyers have listened to them.

None of us are. We need to really feel like we’ve been heard before we can listen to somebody else because if I don’t think my lawyer understands me, then I can be butting heads with them. I really need my lawyer to understand me first and to have listened to me well and to show that they get where I’m coming from. Then, I can be more receptive to the kinds of solutions that lawyer’s proposing.

Oscar Trimboli:                                                      

I’m zooming into your class where you’ve got these enthusiastic young students preparing for life as a lawyer. Quite often, for a lawyer taking a brief, it’s like taking a very small flashlight into a very dark jungle. How do you think lawyers could do a better job of exploring what’s unsaid in the brief?

Lise Barry:                                                                 

It’s a good question. In some ways, the answer is ask better questions. Ask open questions. Explore with the client some more at the beginning. Let them tell about this conflict from their own perspective because I think, sometimes, the questions are aimed at solving a problem rather than understanding the underlying issues and getting to know the person first so that you can understand all of those things that went on behind it.

If your questions are all about the solution, you don’t find enough about the problem at the beginning. It’s sort of about taking a step back. How did this happen? Take me back to the beginning. When did this first start? You see that mediation sometimes. I always say the students … If you’re doing a neighbourhood mediation about a fence, it’s never about the fence. If it was about the fence, they would have solved that problem a long time ago.

Often, in mediations, it’s about something that happened 10, 15, 20 years ago that led to resentments and perceptions of the neighbour that coloured every negotiation that happens after that. In a mediation like that, you have to understand what’s the underlying conflict. What’s coloured these neighbour’s view of each other and put up a barrier to listening to what this problem about the fence to listening to solutions and ways to resolve it.

 

Oscar Trimboli:                   

I’ll just take a quick commercial break. I have the opportunity with Johnny in a couple of weeks to interview Justice Kirby about how judges listen. What questions would GB asking here about listening?

Lise Barry:                              

I would love to know how he concentrates for a whole day. I think the energy that it takes to listen is really important. I’d be interested to know what strategies he has personally for listening and whether he has any little tricks of the trade to share with people there. What else would I ask Justice Kirby? I think he brings such a wealth of experience to his role. I guess I would like to ask as well how does he stop himself from jumping to conclusions because that’s something I find really difficult. That’s a really hard part of the discipline of listening. I’d be interested to hear about that.

Oscar Trimboli:                                                      

How do you listen for extended periods of time?

Lise Barry:                              

I have a few little tricks that I use. Partly, it’s about preparation making sure I’ve eaten before a mediation. I’ve had a cup of coffee. I haven’t had a late night. I prepare myself as I’m going to a sports event. What am I doing today? What energy is that going to take? What am I going to do? I remind myself of the steps of listening. I’m going to have a good eye contact with this person. I’m not going to make judgments early. I’m not going to jump to solution. I talk myself through all of the steps that I would like to see a mediator in my position go through. It’s about that preparation.

Then, when I’m in the room with people, there’s all sorts of things going on that I’m doing. I’m concentrating as a mediator on fairness and neutrality and equality, all of those kinds of things that people want to see in a mediator. If I lose concentration, sometimes, I’ll come back to the real basics of repeating words or reframing or reflecting to get myself back into the moment of what I’m doing if I find myself drifting off. In my mind, I’ll bring myself back here. I’ll say to myself, “Lise, you’re drifting. Concentrate. What are they saying? What’s important? Bring yourself back into the room,” because listening for a whole day, you’re bound to drift off sometimes if it’s a very long mediation.

Oscar Trimboli:                   

What do you notice about your own breathing at the beginning of the mediation discussion?

Lise Barry:                              

I think in some ways, I’m like a mini-version of the clients on the other side of the table. I can be a little nervous because I don’t necessarily know what’s going to happen or what they’re going to be like. Depending on how they come into the room, if I pick up a vibe of aggression or something like that that can make my body tense up and my breathing will change and my heart rate will be more rapid. I need to send to myself and tell myself that the skills I have and the process that I’m using what is going to help these people to open up to each other and to put aside their own preconceptions of how this process is going to go. Yeah. I think that’s similar to what clients go through in some ways in a mediation they’re nervous and tensed.

Oscar Trimboli:                   

How explicit are you in calling out their breathing during the discussion?

Lise Barry:                              

I think I would ever call out anybody’s breathing, but I think that the process of mediation that I use and that most mediators would use is designed to deal with that issue in that we would start most mediation by spending time explaining the process. That gives the parties time to be in the room with each other because, sometimes, this is the closest physical proximity they’ve been in for a long time. Sometimes, they’ve never met, but if their neighbours, for instance, they may have had conflict from afar for a while so they need time just to calm down, settle their breathing. I don’t call it out, but I have a process that allows them to do that.

Oscar Trimboli:                   

For those in the audience having anticipated in a mediation, just take us through your opening couple of minutes in how you explain the process.

Lise Barry:                              

I always begin by explaining the main features of mediation and that it’s confidential, so nothing that’s said in the room is going to go outside of the room. Any notes that I take, I’m going to destroy and just lay it out for them that they can feel free to say what they need to say in the room that it’s voluntary. They’re not tied to the chair. They don’t have to stay for the whole day. They don’t have to stay for any time at all, but I appreciate them being there, but if they want to call a stop to it, they can. I’ll just ask that they talk to me about that first. Then, I explain that it’s a neutral process that I’m not going to tell them what to do. I’m not going to decide on the outcome for them, but I’ll help them through a process of getting to a resolution for themselves. Usually, that’s all been explained to them before by an intake officer or by me in a pre-mediation, but explaining it again gives them that time to settle in the room, be familiar with the surroundings, know that I’m in charge of the process. They don’t have to worry about that and just to feel comfortable.

Then, I explain exactly how the mediation is going to run. It starts with opening statements. In terms of listening, I think this is one of the most important parts. People coming into a mediation who’ve been in conflict have rehearsed that conflict for a long time. They’ve told themselves the same story about that conflict. They’ve prepared for the mediation. They know what’s sort of story they’re going to tell me at the beginning.

Sometimes, it’s written down. Sometimes, it’s war and peace. It’s a long novel. Other times, it’s a very short statement, but it’s usually rehearsed one way or another. I ask them first to tell it to me. They don’t have to talk to the other side at the opening. Two things are happening there though, more than two things. Lots of things are happening there. I’m hearing about the conflict from their perspective for the first time. The other part is hearing about the conflict from their perspective sometimes for the first time. They also have to listen to themselves talk about the conflict in their own words.

Sometimes, when you say something about a dispute out loud, it can sound very different to yourself than when you’re just thinking it through. Then, the other party does the same. I’ll tell them don’t answer. Don’t respond to what you’ve just heard. There’ll be time for us to talk about it, but from your perspective, what’s this conflict about? How did it start, and how would you like to have it resolved? Again, the other sides hearing about it, I’m hearing about it, they’re hearing about it uninterrupted.

As they’re speaking, I’m writing some notes. Then, I read those back so they hear it again. They hear about it in their own words. They hear about the other person’s conflict. There’s a lot of listening in those opening phases. The second phase of a mediation is where I reduce those that information about the conflicts into a series of issues and how I frame it is really important. I need to frame it in a way that everyone can see that this is their conflict. I’m not taking sides I’m not just talking about one person’s issues. I frame them in a way that everyone can understand they’ve got a role in resolving it. I’ll put those on a whiteboard.

Then, we move into the next phase where the parties talk to each other. We work through that list of issues. If we start going around in circles saying the same thing, getting nowhere, we’ll move to the next issue. It’s sort of a process. When we’ve talked through all those issues as much as we can, I’ll speak to people privately for a while just check in with them. How are you going? Have you thought of any ways to resolve this? Do you have any questions? I’ll spend time with each party totally confidentially talking through those things.

Then, we come back to try and see if we can resolve the conflict in some way and come to some agreement which we might put in writing or even an agreement about what isn’t resolved and what needs to go somewhere else.

Oscar Trimboli:                   

You touched on the term it’s a neutral process. For those listening out there who aren’t sure what you mean by that, what’s a neutral process?

Lise Barry:                              

One way I explained it to parties is I say I’m not Judge Judy. I’m not going to tell you who’s right, who’s wrong, or what you should do. As far as the resolution of this is, I’m neutral. This is your dispute. In lots of ways, I don’t have an interest in how it’s resolved that’s over to you. You need to implement any solution so they need to come from you. I’m neutral as to the outcome.

I’m not neutral as to the process in that I want to make sure it’s fair for both sides, and I will intervene. I will if I think one person’s talking over someone else. I’m not hearing what’s being said or not genuine about being there. Then, I’ll call that out. I’ll speak to them in private about it and very occasionally call a halt to a mediation. I’m neutral as to the outcome. I don’t have an interest in the outcome. I’m not neutral as to the party. I want to be impartial.

Oscar Trimboli:                   

I’d like to explore when you went through the process of writing issues up on the whiteboard, as part of a neutral process, one of the things I was hearing there is I’m wondering how neutral it is when Lise writes it up on the whiteboard versus the parties. What are the pros and cons of you writing it versus them writing them?

Lise Barry:                              

I think if the parties were to write it up, that would become another point of conflict potentially. Who do you give the pen to first? Who gets to stand at the whiteboard first? Sometimes, a small process issues are really important to parties. I think it could easily become another source of conflict or trouble in a mediation, but you’re right in that in terms of how neutral is it if I’m writing it up, absolutely. I’m controlling a process. I’ve got no bones about that. It’s I am directing them in some way.

I’m making decisions about what’s important and what’s not and what goes on the board and what doesn’t, but I always would say to them have I got it right. Is everything that you want to talk about is there space to talk about it here on this board? Sometimes, they’ll want to add things. That’s fine. I’ll make a note. I’ll add something. That can be because I’ve missed something important to them or they forgot to say it in the opening statement. They need to talk about it.

Other times, I can feel like maybe that’s a power play. They want to just assert themselves at that early stage. That’s usually okay. Other times, I can say, “Well, I think we can talk about that issue I hear. Is that okay with you” and deal with it in that way. Again, there’s all sorts of things going on as you go through that process and writing the list on the board. That’s a big deal.

Oscar Trimboli:                                                      

I can imagine. Lise, how do you explore what’s unsaid as each participant makes their initial statements?

Lise Barry:                                                                 

In the initial phases, I don’t do a lot of exploration because that’s not the purpose. In a sense, it’s not for me to understand what’s going on underneath. It’s for the other party to understand that. My questions to both parties I need to be careful that it’s not about my curiosity, that I’m not trying to fill something in myself or relate … If I was to ask some detailed questions, they would probably be based on my experience. My experience is not relevant there.

My questions in terms of anything that’s not said I always try to frame them to help the parties understand each other rather than me to understand parties if that makes sense. It’s a little hard to explain.

Oscar Trimboli:                   

Yeah, but let’s do that by exploring a couple of example questions you would use because the distinction between good and great listeners is the extent to which they help the other fully explore the one 125-400 rule because you speak at 125 words a minute, but you’ve got at least 400 words in your hand. I’m always curious about this three-to-one ratio how the listener helps the speaker explore what they haven’t fully said.

Lise Barry:                              

Sometimes, it’s through reflecting and reframing. Let’s say it’s a neighbourhood dispute and someone is describing let’s use a fence, talk about fences, use a fence. They’re explaining something about why a particular kind of fence is important to them. Might be that they really want a hedge. They don’t want a wooden fence. Well, if they’re telling the other person, they’re telling the other party that they really want a hedge and I can see the other party is screwing up their face or raising their eyebrows or reacting to that in some way, then I might say to them, “So, I heard you explain to the other side,” pick a name.

“I heard you explained to Peter that you really wanted a natural-looking hedge. Can you tell us some more about why that’s important to you?” I’m exploring what they haven’t said, but I’m trying not to put words into their mouth, but trying to help Peter to understand what’s behind that need or want of a particular hedge and also trying to draw them out as well. Is this a power play? Do you want a hedge because Peter wants a wooden fence and he’s not going to get it or is there really an important underlying reason for you wanting hedge?

Oscar Trimboli:                   

Now, fifth-level of listening is listening for meaning which you’ve touched on. How else do you draw that meaning out in the conversation to serve both parties?

Lise Barry:                                                                 

Let me see if I can think of examples again to explain what I do. I think sometimes, again, it’s reflecting or reframing. Let’s say it’s a workplace dispute, and let’s say it’s a sexual harassment dispute, for instance. One side has described to me this is a dispute about work allocation. This is a dispute about how we do things. I just have a particular way of talking about those. If I’ve hurt somebody, “I’m sorry but” that’s not what I meant to do I was doing such and such.

Then, asking them to listen to how the other person perceived that. Well, let’s see if they were hurt. Were you hurt? Can you tell Brian about how you felt when he said this is how things are going to be done? Helping them to understand what was said and what was perceived and why it was perceived that way?

I think there’s also an important role for a mediator in helping people to save face so that they can work towards a resolution that everybody is happy with. I don’t like to use win-win because it’s not about winning, but they need to come to a resolution that they can be comfortable with and feel some ownership over. Then, in order to do that, people need to be able to save face. You have to help them through that as well. I don’t know that that’s answered your question at all, Oscar, but that’s some of the things that I do.

Oscar Trimboli:                                                      

Thank you. Context is quite fascinating in a lot of countries today. We have a very multicultural perspective. When you come into a mediation, the context through the lens of culture may be very different. How do you listen at that level?

Lise Barry:                                                                 

Sometimes, it’s really easy because some people can just explain that. It just made me think of one of my favourite examples of that. It was a court-ordered mediation to resolve a settlement claim for an accident. There was no dispute over who’d caused the accident. That only dispute was over the quantum, the amount of money that would be paid in compensation.

On one side, the driver had been born in China. She had been in Australia for quite some time. On the other side, an Australian-born woman who came along with three quotes to justify her claim which is a great thing. She had some objective measurements for how much he was asking for and very firm ideas about what was fair. What was fair was to get three quotes and accept the lowest quote and for the other, the woman to pay that amount.

She put all of that information to the other side and said, “This is what I want you to pay.” End of story. I always remember that the other party just said this is not how it works. In my country, I make an offer. You say no. I make another offer, you go lower. We dance backwards and forwards. Then, we arrive at an amount. She just couldn’t come at this different way of arriving at an amount even if it would have meant arriving at the same amount. It was the process was different.

Students in my courses I asked them to do an exercise where they think about a conflict or a dispute or a negotiation that they’ve been part of and think about how their culture has played on that. Often, students who come from India will say to me. One said, “I was born negotiating. This is what we do.” I like negotiating. I like the backwards and forwards, and my parents have modelled that to me, so not all cultures have that rich experience of negotiation and backwards and forwards. It’s really interesting to hear from people from different backgrounds about how they do that and how they were raised.

Oscar Trimboli:                                                      

One level of culture is the explicit that you’ve just discussed about over negotiating. Other things implied by two cultures overlaying and it’s a power dynamic between the host language and then the language of the counterparty where it may not be their first language. Some people are negotiating in a language. It’s not their first language. How do you help the listening process where a power dynamic is created by the fact that English may not be the first language of one of the parties?

Lise Barry:                              

Sometimes at a really practical level by providing an interpreter. I would always have a discussion at the beginning of a mediation about how that interpreter will be used. I make sure that the person for whom English as a second language is comfortable with that. There’ll be times where their English is so poor that they’ll need everything interpreted for them. It’s a very slow and careful and deliberate process of making sure that everything that I say is interpreted for the person. Everything the other side says is interpreted for the person. We have to take it really slow.

It can be very hard work for everybody. It involves a lot of concentration, and speaking in very small bites and waiting for those things to be interpreted and watching that person to be sure that I’m reading their body that they’ve understood what’s going on and that they’re comfortable with the process. It can be hard for people in an emotional conversation to use an interpreter. It’s very difficult. I really admire people who can take part in a mediation when English is not their first language.

Other times, the interpreter is there as a backup. If things get very emotional, your second language can slip. You might not be able to think of technical words where your everyday English is fine. The interpreter is a backup. If I don’t have an interpreter, then again, I’m watching a person’s face and their body to make sure that they’re following things. Sometimes, I’ll be overt about the other side watching that as well. I’m thinking here about restorative justice mediations where I’ve got victims and offenders. Sometimes, an offender might be from another culture speaking another language or [inaudible 00:34:21] English, but they may be, for instance, looking down, looking shameful, reading off notes when they’re being asked to talk to the victim of a crime.

That can be interpreted as not caring or not taking a process seriously. Sometimes in a private session, I’ll ask people how do you feel things are going, what he thinks going on, have you got any thoughts about this? They’ll talk about that. Well, they’re not looking at me or they’re pretending they don’t understand and just helping them to unpack that and is that really what’s going on? Could there be another explanation for that?

Here’s what I’ve seen today. You saw him looking down. What I could see was that he was reading notes that he’d prepared. He told me that it was okay to speak to you about those notes. Sometimes, I’ll explore that sort of thing really carefully with people if I think it’s getting in the way of them coming to some sort of resolution.

Oscar Trimboli:                   

You mentioned that you look at face to notice. To help our listeners, what specifically you’re looking at in the face?

Lise Barry:                              

Eyebrows. Eyebrows going up, brows being furrowed, eye rolling, everything. These people hold tension in their faces. They hold questions. They hold disbelief. They hold aggression, all of those things. I’m looking to see if the face matches the words, and if their face is telling me that they’re genuine in what they’re saying or they’re just going through the motions. The other side will be doing the same thing.

If it doesn’t match, again I won’t necessarily call it out. I might. I might say, “You seem a little puzzled or do you have a question about what this person has just said? Is there something that’s concerning you about what they’ve just said?” Sometimes call it out, it sort of depends on whether I think that’s going to help or hinder.

Oscar Trimboli:                                                      

What role do you think silence plays?

Lise Barry:                                                                 

It’s so important. So hard to do for people. I do an exercise with students where they just have to listen to the another student for two minutes. It’s not very long. For most students just listening for two minutes is really, really difficult. You watch them. They feel uncomfortable. They look away. They fidget. They laugh because they’re nervous. They don’t know what to do with themselves, but silence serves so many purposes.

Sometimes, it just allows people to think to not feel pressured to come up with an answer immediately to give a really considered response. It’s very important in the final stages of a mediation where we come back together. It’s a key technique to open up a conversation to say to the parties right. We’ve talked through all of these issues. We’ve said everything that you need to say about this dispute. Now, we need to look to the future and how this can be resolved. Does anyone have any ideas about how you could move forward? Then, I just wait. That silence there is usually the longest one in the mediation because people are scared to be the first to make an offer. They don’t want to put themselves out there necessarily at that point or they’re waiting for the other side to cave. There’s a real power play there, but when you leave that silence, it’s a very important technique in helping people to move towards a resolution.

It’s something that I talk about sometimes with parties in a private session before I explain that I’ll be asking that question. I’m not going to say who should go first. It’s over to them than to own it and to … If they want to resolve it to come up with a way that it can be resolved so we can start negotiating.

Oscar Trimboli:                   

That’s the longest you’ve ever had in a while.

Lise Barry:                              

Probably about I’m going to say about 45 seconds. That’s a long time. If you sit with someone for 45 seconds, it’s a long time. The parties will look to me. What are you going to do about it? I have to be very disciplined and just sit calmly and look to both sides and wait. Someone will crack eventually.

Lise Barry:                                                                 

Where’s your eye contact during the silence?

Lise Barry:                                                                 

Both equally. You have to be that sort of role of being neutral involves that that real equal eye contact is an important aspect of that, so both sides equally.

Oscar Trimboli:                                                      

How do you frame a room to be a neutral listening environment?

Lise Barry:                                                                 

Ideally, it’s a circle or a triangle. It’s very important the physical space, the same chairs at the same height, the same paper, the same pens, the same distance apart from me from each other so that I’m not sitting closer to one side. They can’t draw me in physically any more than they can sort of emotionally into their side of the dispute. Physically, the equality of distance is really important. You don’t want people squaring off against each other too much. It’s more of a circle feel even if I don’t have a circular table.

Oscar Trimboli:                                                      

For those of us in a workplace who can’t control our physical environment, what tips would you give them where they’re typically drawn into a room that’s got a rectangle or a square table? What would your suggestions be to help elevate the level of listening and neutrality there?

Lise Barry:                                                                 

I would think really carefully about the seating arrangements. I would make a very deliberate decision about splitting up parties if I think that they’re drawing on particular relationships. It would be helpful if they listen from a different perspective. I might use nametags, for instance, or more typically as people come into the room, I would point to a seat and ask them to sit in a particular place. It depends on the conflict really where I would seat people whether I have the most powerful people closer to me. I can manage them or further away and draw in someone with less power to sort of support them.

It really would depend on the conflict. That’s a decision that you have to make. It’s context-specific, but it has to be a deliberate decision. Don’t just let people choose a seat randomly or accidentally. Be intentional about it.

An elderly woman tripped on one of those concrete bollards that fencing goes into around a construction site. At least she thinks, that’s what had happened and she went to the local council, and she explained that she had this fall. She’d had to go to hospital. Her eyesight was affected. She didn’t know what to do about it. She didn’t really want to go to court about it. She was caring for her husband at home who had a serious vision impairment as well, and she didn’t have time or money to go to court.

The local council suggested she try mediation. We had a mediation with her, and her husband was there as well and two of the gentlemen from the construction company. She explained the accident that she’d had this fall. She tripped over the bollard. She felt they’d put it in a bad spot. She hadn’t seen it. It was a terrible thing. As I said, her vision was affected. It had really had a big impact on her. They listened to that.

They explained from their perspective they’d done nothing wrong. They’ve complied with all the right guidelines. How did she know it was the bollard? But then, we asked a very simple question of after they’d explored the accident and how it had occurred. We said to the woman, “You’ve explained that you had to go to hospital. You neighbour had to take you. You needed some medication. What would you like to have happen today? What would help you in this situation?”

You could see the construction workers were sort of bracing themselves. They’d come in with an expectation that she was after something. When she said, “Well, what I’d like is $25 to cover the cost of the neighbour’s taxi who took me to the hospital. I’d like some money for the prescriptions. I really want them to say sorry to my neighbour for the trouble that she went to.” You could see their bodies just relax. When I talked to them afterwards, they said that their purpose in attending the mediation was to see what sort of witness she’d be in court. They hadn’t really come with a genuine intention to help resolve her problem, but what they agreed to at the end when they understood where she was coming from that she wasn’t trying to bankrupt them that she didn’t want a million dollars or whatever it was they were afraid that she wanted. They saw her. They listened to her. They saw her with her husband caring for him as well.

What they agreed to was not just the neighbour’s taxi fare and a box of chocolates and a bunch of flowers, but they offered to go to this couple’s house for the rest of their lives, I’m not kidding, and provide any home maintenance that they needed because they ran a building company. They just met her in that space as a person who was genuine and didn’t know what to do about it or where to turn. She wasn’t after them. She wasn’t after their company. That’s a beautiful example, but an example of where people’s expectations coming into that process were just blown away when they really saw the person listen to the person understood where they were coming from. It was lovely.

Oscar Trimboli:                   

One of the things our audience often references is that their learnings come from both the positive and the negative frame. What’s a spectacular example of not listening in a mediation that you’ve run across. If you’re struggling with one, feel free to use a couple.

Lise Barry:                              

Yeah. I think some of the most difficult ones are neighbourhood disputes because people have invested usually so much of that time and energy in those conflicts. Some of the most difficult ones are you sometimes get a feeling like the conflict has overtaken the person’s life. That’s become their night and day. They live and breathe that conflict. They can’t see away clear. They’ve dug themselves in so deep to their position that helping them to move out of that over the course of a day is just almost beyond anybody’s powers sometimes.

Those ones can be very, very difficult where people are just really entrenched in their own behaviours in interpreting the other person’s behaviours in a particular way. To give a simple example, the sorts of things strata disputes are often quite difficult where I’m thinking of one where one person in the unit block objected to some vegetation on the property and had been cutting trees down with the chainsaw and just point-blank refused to acknowledge that that is what he’d been doing even though they had photos of him in the mediation up a tree with a chainsaw.

They said, “See? That’s you up a tree with a chainsaw. We’ve caught you.” Just point-blank refused to acknowledge that it was him. He couldn’t go that step. In those cases, if people aren’t ready, if it’s just beyond them, there’s nothing I can do. Because I’m not Judge Judy, I can’t say, “Well, the evidence is there. That’s what happened.” You’re telling us that isn’t you. Regardless of who it was, what can we do? People aren’t … Again, they’ve just rehearsed it so much what they’re going to say and how they’re going to say it.

They can’t back down no matter how much space I give them to do that. Then, those things can implode. I’ve seen workplace disputes like that as well where the parties are just so hurt and so used to thinking about the person in a particular way and perhaps ashamed of their own behaviours as well that they’re just not ready to acknowledge what they’ve done and how it might have impacted the workplace or the other person. Those ones can go pear-shaped as well sometimes, I think.

Sometimes, the stakes are high if people’s jobs are on the line. They can be difficult ones to manage. There are some that you can’t even let go ahead because that power dynamics are just so bad that you know that somebody’s going to get walked over or that you know you can’t be impartial because you cannot trust what one of the people are saying because of things that you understand from a pre-mediation discussion with the parties beforehand. That’s hard when you can’t help people. That always makes me feel bad.

Oscar Trimboli:                   

Finally, what’s the one tip you think you can leave with the audience from the mediation domain that would help people to listen more deeply?

Lise Barry:                                                                 

Listen first. Come up with solutions later. That is so hard for people to do to firstly try and understand it from the other person’s perspective and try and walk in their shoes for a while and see the conflict from their point of view. Then, think of options, not solutions, just options to talk through with the other person and their options and your options. Put them all on the table. Then, try and work on the resolution. Most of us go the other way around.

We come up with a solution that we want to force on the other person. Then, we’ll tell them how we’re going to get there. The only listening we do is geared towards our solutions to the problem. Listen first. Solutions last. That would be my key tip for people.

Testimonial:                         

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Oscar Trimboli:                   

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Oscar Trimboli:                                                      

Don’t you just love listening to somebody who’s an expert in their craft? Lise had such an amazing way to look at listening through multiple lenses through a culture, through power, through setting up of the physical environment, for listening to silence as well as listening for meaning, but listening for what’s unsaid as well as listening to what the eyebrows are telling you about the conversation.

I love that Lise had the intuition to understand the impact of English as a second language and how that sets up power or lack of it during a mediation. Lise also is conscious enough to understand that, culturally, multiple negotiating styles are present when she’s in the room and she’s careful to draw that out in the dialogue.

I think the story about the elderly lady who just wanted the $25 taxi fare for her neighbour’s inconvenience and ended up with a bunch of flowers and repairs to her home for the rest of her life from the construction company is a really good example of mediation going well. Equally, Lise did a great job of explaining how much cost is involved. When you give over your power to a lawyer and paint yourself into a corner because you feel like that a legal option is the only way forward, that creates a huge backlog in our court system, imposes huge costs not only on the participants, but also on society.

I wonder what you’ll take out of today especially the way Lise was able to listen over multiple dimensions. The one thing I’ll take out of this is how do you become conscious of multiple listening cultures and backgrounds when you walk into a dialogue. What assumptions are holding you back from making progress on the conversation?

Thanks for listening.

What did you notice about my listening?

Lise Barry:                              

Great. I guess you do some of the things I do in mediation. You listen for key terms you pick up on those terms so that I know you’ve heard what I’ve said. Your questions are very open. I don’t feel like you’re judging me as you’re listening to me. Those are the same sorts of skills you want to bring to mediation. It’s not easy to interview people to get the grab that you want.

Oscar Trimboli:                                                      

I’m sitting there and knowing there’s gold everywhere in this. For me, it’s how do I give witness to what was useful for the audience because for me like you in your neutral approach, I can sit here and be incredibly curious myself but that’s not serving the audience. [inaudible 00:55:14], how do I channel the audience is the key I’m listening for at the end of the day to make sure that it’s in service of them not in service of my curiosity around the topic. For me, it’s how do I how do I create both practical and process things for them to think about as they leave today? You provided both.

Oscar Trimboli:                   

I think I was thinking earlier about … says those key things. I wasn’t going to come up with that answer that I gave you, but in terms of what you do, I think it’s sort of what you just said that it’s a discipline and a humility. I know some of your other guests have talked about that as well. It’s that I don’t know what’s best for you. Only you know that. You’ll come up with that yourself if I give you the space to do it. You have to implement it. There’s no point me telling you how to do it, but it’s similar in interviewing to set discipline of not exploring your own curiosities is difficult.

 

Deep Listening: Impact Beyond Words.

 

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