The Missing Link – Enhancing Mediation Success Using Neuro-Linguisitic Programming

I. INTRODUCTION

The Difference that Makes the Difference

What is it that separates the best from the rest? Generally speaking, the highly coveted litigators and mediators draw people to them over and over again because of that something extra they possess. In Neuro-Linguistic Programming (“NLP”) that something extra is often referred to as “the difference that makes the difference.”[1] Outstanding performers in any field instinctively know the “difference that makes the difference.” Successful trial lawyers, for example, have a keen knack for connecting with the jury and persuading them to follow their lead in support of the client’s case. Similarly, parties prefer some mediators over others in large part because they are able to move people away from their entrenched positions and toward a more flexible mindset needed to settle cases. Although litigating and mediating require quite different skill sets, a review of those who demonstrate excellence in either of these fields will yield certain common denominators, which can be identified using NLP.

Maps and Models are the two primary components that makeup NLP. Maps serve as a blueprint for the brain. No two minds think alike because every person is programmed differently. NLP acknowledges this and prompts people to communicate with their audience in a way that specifically caters to how the individuals in that audience think, process information, perceive the world and relate to others. Since no two individuals possess the same map of the world, to communicate effectively, one must be able to identify the map of another and then operate within its framework. NLP provides the tools for working within another individual’s map, by teaching how to quickly build rapport and alter the communication so that it matches the way the other person thinks and processes information. Whether an advocate or a mediator, being able to recognize how someone manages information, be it auditory, visually, kinesthetically, or audiodigitally, will greatly improve the chances of fruitful communication.

Models represent the structure of our actions and can be used to replicate the key elements of excellence displayed by another in a particular activity. The purpose of modeling is to identify that something extra in another person that allows them to achieve remarkable results consistently. Once identified, these traits can be passed on to others who can then learn to perform the same activity with a similar level of skill and excellence. This does not mean that NLP will make an Albert Einstein out of every physicist. It goes without saying that the person learning the skill must have the necessary aptitude, and be willing to carry out the necessary self-development in order to reach the level of excellence they seek to achieve. Another caveat is that modeling requires the model, whether advocate or mediator, to agree to give of themselves, their time, their expertise, and to open their internal map of the world to another, all of which many ideal models may be reluctant to do.

Through the use of maps and models, NLP paves the path for discovering and unfolding one’s own personal genius and provides the means for bringing out the best in each person. There is a great deal that NLP has to offer, much more than can be covered within the scope of this article. The objective of this piece is to acquaint the reader with NLP’s underlying premises and highlight some of the possible uses for the advocate and mediator within the mediation context.

Neuro-Linguistic Programming … What’s in a name?

Neuro-Linguistic Programming was brought to life in the early 1970s through the work of John Grinder (assistant professor of linguistics at the University of California, Santa Cruz) and Richard Bandler (a psychology student at UCSC). Bandler was particularly interested in psychotherapy and how certain therapists consistently achieved excellent results. This interest led Bandler to become involved in studying the work of Fritz Perls (the influential founder of the Gestalt school of psychotherapy) and Virginia Satir (famed family therapist). Along the way, Bandler found himself acquiring language patterns and communication mannerisms that were almost identical to that of Perls and Satir. It was around this time that Bandler became acquainted with Grinder and the two collaborated on the development of a behavioral and linguistic model based on the patterns observed in Perls, Satir and Milton Erickson (renowned hypnotherapist). Their intention was not to establish a new school of therapy but rather, “to identify patterns used by outstanding therapists, and pass them on to others.”[2] Together Bandler and Grinder found that the underlying techniques that enabled these three therapists to achieve excellent results consistently could be applied more broadly, giving rise to NLP.

Although NLP’s origins are in psychotherapy, it is a discipline that can be applied to model excellence in almost any field. Sports’ coaches use NLP to model the correct technique and help athletes visualize winning.[3] All the world’s top politicians undergo some form of NLP training to use non-verbal communication to subliminally increase their likeability factor.[4] NLP is used rampantly in sales and advertising as an effective way of communicating with the consumer about the quality of a product and why people should buy it.[5] Police officers and FBI detectives are taught NLP techniques so they can build rapport and communicate more effectively when interviewing witnesses and increase the chances that an exchange of information will follow.[6] NLP is even used by actors and comedians to enhance their ability to connect with the audience and transform their stage presence.[7] At its core, NLP is all about process, not about content … making it universally adaptable to nearly all fields, including conflict resolution.

The name “Neuro-Linguistic Programming” was created to reflect the integration of three different scientific fields.

Neuro refers to the nervous system and includes all of the senses: seeing, hearing, touching, smelling, and tasting. Every second, approximately two million bits of information flood into the nervous system, comprising our model of the world.[8] It is through these senses and the information produced that people communicate with themselves and others and explain what things mean. The language used affects these internal representations, and the meaning of the internal representations determines how one behaves.[9]

Linguistic refers to the application of language as a means of affecting another’s behavior. People generally speak with the intention to get across a particular message. What is said and how it is said will determine the reaction from the person on the receiving end of the message. Therefore, to communicate a message effectively, it needs to be structured so that the person spoken to hears the message as it was intended.[10] Often what is said and what is heard are two very different things. The only way to get the desired response to a message is to first ensure that it has been heard correctly.[11]

Programming in the NLP context refers to our habits and repeating patterns of thinking and behaving. Everyone has programs that run unconsciously and reside outside their sphere of awareness. For example, individual’s run programs for getting excited, getting motivated, making decisions, for learning, being creative, being persuasive and programs for remembering.[12] Some of these programs work effectively while others may be less than effective. A person on “autopilot” is a perfect example of someone who is unconsciously running an internal program. The power of programming can be harnessed by discovering and using the programs that consistently work well, while distancing oneself from the programs that are ineffective and inefficient.[13]

So what’s in a name? Neuro-Linguistic Programming constructs an approach using maps and models to understand and reproduce effective behaviors and the cognitive processes behind them. The NLP process involves finding out about how the brain (“neuro”) operates by analyzing language patterns (“linguistic”) and non-verbal communication. The results of this analysis are then put into step-by-step strategies or programs (“programming”) that may be used to transfer the skill to other people and areas of application.[14]

II. MAPS

I’ll Show You My Map, if You Show Me Yours …

Think of a rose. What comes to mind … a visual of a rose in full bloom; the feeling of a rose being held in the hand with its soft petals and prickly thorns; or the smell of its warm sweet fragrance after being freshly picked from the vine? The task at hand is a simple one, yet there is a myriad of variations between one person’s response and another’s. This is because we each perceive the world differently through our highly individualized senses. NLP operates from the basic assumption that the “map is not the territory.”[15] From this perspective, there is no one correct map of the world or concept of a rose. Each person will have their own world view and constructed recollection of the exampled rose based upon the sort of neuro-linguistic maps that have been formed. These maps are what determine how we interpret and react to the world around us.

This concept applies equally to the individuals taking part in mediation. Each person attends with their own reality and concept of what is appropriate, acceptable or a fair resolution for their case. It is well known that mediation works as often as it does because that sense of reality or world view is constantly being altered or dare it be said, manipulated, by the mediator to one that is more likely to lead to settlement. The mediators most successful in this endeavor are those who take the time to appreciate and respect that individual’s reality and map of the world before gently guiding them toward a map more closely aligned with settlement.

At the heart of NLP is the belief that people make the best choices available to them at the time based upon their internal map of the world.[16] If someone does not behave in line with expectations, whether an attorney, party to the case or mediator, realize that they are behaving in the best way they can under the circumstances. The behavior being exhibited by the person is the limit of that individual’s capability in that moment because he or she is working within the confines of their map.[17]

Dealing with Generalization, Deletion & Distortion

Every individual is susceptible to perceptual overload and although bandwidths differ, each has a maximum capacity beyond which any additional information will cause malfunction and internal incongruence. As a safety mechanism, our minds are preprogrammed with the ability to unconsciously generalize, delete and distort information as needed to prevent perceptual overload.

Generalization is the process by which elements of a person’s model detach from the original experience and come to represent the entire category of which the experience is an example.[18] Generalization reduces the amount of information that needs to be processed so the mind can cope with the all the surrounding stimuli. The human mind is proficient at noticing patterns and regularities from which it unconsciously creates abstract principles and rules to guide behavior.[19] For example, plaintiffs may generalize that “most insurance companies are cheap” while defendants generalize that “most plaintiffs are frauds.” Consequently, people often attend mediation with preconceived notions about the other side’s intentions, causing excessive skepticism and suspicion that hinders the mediation process. To break through this spiral and make way for settlement, it is necessary for the parties to recognize that these generalizations are misplaced and should be set aside at least for purpose of mediation.

Deletion is the process of selectively paying attention to certain dimensions of experience while excluding others.[20] Deletion allows the mind the freedom to select certain parts of incoming information to pay attention to while filtering out everything else. Information is unconsciously “deleted” for a whole host of reason, but more often than not, it is because the mind determines the information is unimportant or hurtful. Deletion is the reason why “people hear what they want to hear” and are able to filter out or exclude all other sound in a room full of people talking in order to listen to one particular person’s voice.[21]

Deletion reduces the world to proportions the mind can handle, which is undoubtedly helpful in some contexts. However, as advocates and mediators, deletion poses the risk of losing valuable information that may provide clues on how to unlock and cross impenetrable settlement barriers. Similarly, parties often unconsciously delete information received from the mediator or the adversary that they find harmful to their case. Mediators should be cognizant of this effect so they can find ways to ensure that the message intended is actually getting through rather than selective bits and pieces.

Distortion is the process that enables the mind to make shifts in experiences of sensory data.[22] Information is distorted by making connections between what is perceived, what it might mean, and what might happen as a result.[23] The mind distorts information by labeling individual experiences, interpreting them, making meaning of them, drawing inferences from them and then coming to conclusions.

For example, consider a bottom-line discussion near the end of a mediation where plaintiff’s counsel adamantly states, “There’s no way I’ll take less than $100,000 to settle this case” and defense counsel insists, “There’s no way I’ll pay more than $60,000 to settle this case.” These statements, taken at face value, would lead most to conclude that the case is unlikely to settle based on counsels’ representations and that if it did, the attorneys were posturing and being necessarily deceptive to get the best deal for their clients.

According to NLP however, the statements of the lawyers in this example were not motivated by deceit but rather by their best evaluation of the case under the circumstances; these attorneys, by NLP standards, truly believe when making their representations that the case shouldn’t settle for more or less than the amounts they stated. This fundamental difference in the way NLP frames the situation is critical because it makes settlement possible so long as the parties communicate with each other and remain open to revaluating their position until the moment of trial. By falling victim to distortion and drawing immediate conclusions, we siphon any opportunity of altering that portion of the map which speaks to what constitutes an appropriate settlement.

Although these inherent protective mechanisms, deletion, generalization and distortion, serve us well in everyday life, they can impede the ability to mediate effectively if left to get in the way. Before behavior can be changed, its existence must first be identified. Understanding these concepts and how they affect the way we and others perceive the world, is the first step to NLP success.

Building Rapport

Every individual is unique in their thoughts, behaviors, and perceptions. Accepting that each person’s perception is valid and the truth for them, transports us to a position of rapport, where we can influence and be influenced by those around us. Being in this position does not require agreement with everyone all the time. Rather, it provides an understanding of the situation from another’s vantage point, making clearer the reasons for their choices or particular behaviors.

Before rapport can be built with others, it must be established in oneself. People who are successful generally have solid intrapersonal rapport and are in harmony with themselves. Take a moment to consider your life’s choices and ask yourself these five questions:[24]

  1. Are you doing work that is in line with what you believe to be important?
  2. Are you taking actions day by day to further your purpose in life?
  3. Are you consistently true to yourself in what you do and what you say?
  4. Are you realizing your true potential in the way that you are using your core talents and skills?
  5. Do your surroundings communicate messages about yourself that you feel are an accurate expression of who you are and what you stand for?

If the answer to all of these questions was yes, then you have personal rapport and are aligned with yourself. If you answered no to two or more of these questions, then it would be wise to reconsider your chosen career path in hopes of finding one that is more in tune with your true purpose, identity, values and skills.

Rapport is the ability to join people where they are in order to build a climate of trust and respect. It is difficult to influence another without being open to being influenced. Having rapport with someone presumes the ability to see eye to eye, be on the same wavelength as them and connect with them mentally and emotionally; understanding where the other person is coming from so that one appreciates and respects what that person thinks and feels even if it is at odds with one’s own thoughts and feelings.[25]

The success of any person to person communication is directly connected to the amount of rapport that exists between the people involved. Rapport resembles a wireless antenna that controls how clearly a message gets through to another.[26] The quality of the signal or communication is measured by the results it achieves.[27] When communicating with another, it is important to speak in terms they understand and to which they can relate. A classic study by Professor Albert Mehrabian showed that despite great efforts to communicate effectively, only 7% of the meaning in a message was carried in the actual words used while 38% was in the way the words were communicated. The remaining 55% of the impact of the message was determined by the speaker’s body language – posture, gestures and eye contact.[28] By creating rapport, we exponentially increase the likelihood that the communication is understood as it was intended.

Advocates and mediators work hard at selling a settlement when mediating. The successful salesman knows that making a sale requires flexibility and adaptability. Similarly, there is no one perfect sales script in mediation that will get all sides to agree to a settlement. Every mediation is different and each moment within a single mediation is unique, constantly changing and evolving just as a living organism. Once the mediation starts, the successful advocate or mediator like the low-handicap golfer, must play the ball as it lies, not as he or she wishes it had landed.[29] Swings and clubs, techniques and skills, are changed depending on where the ball rests.[30] That is, to influence others, the approach must be adapted until it fits while continuing to maintain rapport.[31]

Rapport can be quickly built with anyone by finding shared experiences, matching their ways of communicating, using the actual words they use or their preferred terms, matching their tonality, and adopting their postures and gestures to mirror their physiology.[32] The point here is to synchronize with another – or pace someone so that person develops trust and believes the world is being viewed as he or she sees it. Similarity leads to trust because of the simple issue of comfort. People are most comfortable with that which is familiar and with others who resemble them.[33]

Pacing someone requires subtlety to go unnoticed. The key to pacing is observing the other person and becoming that person at some unconscious level. Pacing establishes rapport and is the groundwork for trust and persuasion.[34] Once rapport is gained through pacing, the person can be led toward the decision or action desired of them. As an example, walk with someone carefully matching their pace and rhythm; maintain this “pacing” for a few minutes.[35] Then gradually increase or decrease the pace, and watch what happens. The other person will begin following and unconsciously matching the leader’s walk.[36]

Like trust, rapport can easily be broken. One surefire way of chipping away at rapport is by using the word ‘but’. But communicates disagreement with what is being said and let’s the person know that objections to what they have said are about to follow. Ex. “I totally agree with what you are saying, but …” The ‘but’ negates everything that preceded it. As an alternative to tacking on these ‘but’ afterthoughts, use the word ‘and’ instead or just add a new sentence that addresses the concerns. Although this may require the occasional rearranging of sentence structure, the benefit is maintained rapport that can be accessed when most needed to achieve closure.

Representational Systems

NLP identifies four major sub-languages or representational systems that people use when verbally communicating.[37] When a person tends to use one internal sense habitually, that becomes their preferred system or sub-language. Two people may speak English to each other without fully comprehending what the other has to say because they are not speaking the same sub-language. When a conversation between two people is based on different preferred representational systems, they might as well be speaking different languages; each can hear what the other person is saying but will find it very difficult to understand what the other person means.

Identifying Your Sub-language…

The representational systems can be divided into four major groups: Visual, Auditory, Kinesthetic and Audiodigital. To improve communication and establish rapport, one must be able to recognize these representational systems within speech patterns, determine their own individual preferred language pattern, and learn how to speak the other sub-languages as necessary. Take a moment to think of a memory from a recent vacation. What came to mind first, a picture, sound, feeling or experience about the vacation? Whichever one it is, this is your preferred representational system, the internal sense used to bring thoughts back into consciousness. Another way to determine one’s preferred style is to take a formal test such as the one developed by Dr. Tad James (Director of Training and Research of Advanced Neuro Dynamics, certified master trainer or NLP).

Sublanguage Preference Test

For each of the following statements, place a number next to every phrase using the following system to indicate your preferences.

4 = closest to describing you

3 = next best description

2 = next best

1 = least descriptive of you

(1) I make important decisions based on:

Gut level feelings

Which way sounds best

What looks best to me

Precise review and study of the issues

(2) During an argument I am most likely to be influenced by:

The other person’s tone of voice

Whether or not I can see the other person’s point of view

The logic of the other person’s argument

Whether or not I am in touch with the other person’s true feelings

(3) I most easily communicate what is going on with me by:

The way I dress and look

The feelings I share

The words I choose

My tone of voice

(4) It is easiest for me to:

Find the ideal volume and tuning on a stereo

Select the most intellectually relevant point in an interesting subject

Select the most comfortable furniture

Select attractive color combinations

(5) Which best describes you:

I am very attuned to the sounds of my surroundings

I am very adept at making sense of new facts and data

I am very sensitive to the way articles of clothing feel on my body

I have a strong response to colors and the way a room looks

To find out how you scored, complete the scoring system table below.


Scoring System

Step One: Copy your answers into the boxes for each respective question.

Question 1

Question 2

Question 3

Question 4

Question 5

________K

________K

________K

________K

________K

________A

________A

________A

________A

________A

________V

________V

________V

________V

________V

________Ad

________Ad

________Ad

________Ad

________Ad

Step two: Add the numbers associated with each letter. There are five entries for each letter.

V

A

K

Ad

1

2

3

4

5

Total

Step three: The comparison of the total scores in each column will give the relative preference for each of the four major representational systems.

Can We Speak the Same Language?

Identifying one’s own sub-language or preferred representational system is far easier that identifying someone else’s. This is because people cannot go around asking others to complete a test like the one above before engaging them in a conversation. To do that would surely be awkward and would hardly serve as an ice-breaker to the conversation. Instead, more subtle ways of identifying another’s preferred representational system need to be used, such as words and speech patterns, body posture and eye accessing cues that typify each of the four major systems.

Clues to Identifying Visuals

Approximately 50% of the business population is made up of visuals.[38] When speaking to someone whose primary representational system is visual, they will tend to use words that depict a picture or an image and use phrases like, “I don’t see the benefit of negotiating further” or “The plaintiff looks like he’s ready to settle.” For more visual words and phrases see Tables 1(a) and 1(b) below. A visual person can also be identified by watching their eye movements (See Diagram 1 below). Visuals will often look upwards or straight ahead when contemplating and will think, talk and behave as though their entire mental processes are held on film.

People who are primarily visual tend to be relatively fast talkers, and may be impatient when interrupted because they need to talk as fast as the film show running in their mind.[39] Visuals often use their hands freely and in a way that complements what they are saying.[40] For these reasons, the visual person generally has a keen ability to see the big picture yet quickly zoom in on detail when necessary. In mediation, this means that a visual person is more likely to be comfortable discussing the bottom line than getting stuck in the details of the negotiation dance.

Table 1(a) – Visual Words[41]

See

Look

Hazy

Observe

Flash

View

Picture

Misty

Image

Show

Vision

Focus

Glimpse

Glowing

Sparkle

Colorful

Scan

Gaze

Brilliant

Highlight

Outlook

Perspective

Glitter

Vivid

Bright

Insight

Dawn

Illuminating

Shine

Transparent

Reflect

Murky

Go blank

Scene

Opaque

Watch

Appear

Envision

Lackluster

Mirror

Show

Reveal

Crystal clear

Dim

Snapshot

Aim

Appearance

Behold

Blind

Ugly

Blush

Sunny

Spotless

Cloudy

Dark

Visible

Draw

Dull

Portray

Examine

Faded

Foggy

Luster

Glance at

Glare

Gleam

Notice

Glisten

Vista

Spy

Likeness

Illustrate

Oversight

Inspect

Light

Study

Viewpoint

Stain

Pretty

Neat

Pattern

Stare

Sight

Panorama

Shimmer

Table 1(b) – Visual Phrases[42]

Look at this

Paint a picture

Glowing review

Visualize the idea

Show me

Shed light on the issue

See it

Envision the following

Obscure the view

Picture this scenario

Gaze at that

Colorful presentation

Focus on this

Preview the outline

Brighter prospect

What is the perspective

Draw conclusions

Light at the end of the tunnel

Watch this

The picture is cloudy

Observe that

A strategic vision

Look into it

Illustrate my point

Dark side

Imagine the possibilities

Bleak future

Diagram 1 – Visual Eye Accessing Cues[43]

When someone is in the Visual Constructed mode, their eyes look up to the left, signifying that they are mentally picturing something imagined rather than real (i.e. a pig flying with wings). In contrast, when someone is in the Visual Recall mode, their eyes look up to the right, indicating that they are mentally picturing something they have previously seen. Regardless of the direction, when someone repeatedly looks up, this is a signal that their preferred representational system is visual. Knowing this information about them allows speech patterns to be tailored to more closely match theirs, increasing rapport and the effectiveness of the communication.

Advocates may choose to use this tool differently … as a way to determine whether a witness or party is accurately representing what they have seen. If the person looks up to the left when asked to recount what they saw at the scene of the accident, it’s probable that what he or she is describing is different from what was actually seen. On the other hand, if the person looks up to the right when describing the scene, it’s more likely that the description is an accurate representation of what the person recalls. The defense may seek to take advantage of this tool at mediation if the plaintiff has yet to be deposed by requesting a joint session so they can observe the plaintiff’s eye movements and gather information about the validity of the claim. For the same reasons, plaintiff’s counsel is apt to decline a joint session if their client finds it generally difficult to provide an accurate history of events.

Clues to Identifying Auditories

People with an auditory preference make up about 25% of the workforce.[44] Auditories habitually talk to themselves, especially when they are concentrating really hard and use phrases like, “I hear what you’re saying, sounds good to me, tell me more”. Additional examples of typical auditory words and phrases are noted below in Tables 2(a) and 2(b). Auditory eye movements are left and right at eye level as if the person is trying to look at one of their ears (See Diagram 2). Auditories tend to be somewhat assertive and domineering in group settings because they need to verbalize their thoughts in order to clarify their own ideas.[45] They respond best to instructions and information delivered primarily in words and at a tempo roughly equivalent to their own normal rate of speech.[46] Because of these characteristics, auditories are more prone to ask questions and seek verbal clarification after being presented with a settlement proposal.

Table 2(a) – Auditory Words[47]

Hear

Say

Speak

Shrill

Loud

Listen

Click

Talk

Cacophony

Whisper

Sound

Resonate

Amplify

Noise

Discordant

Tone

Rhythm

Screech

Quiet

Cadence

Accent

Harmony

Dialogue

Melody

Symphony

Musical

Tune in

Raucous

Buzz

Tell

Call

Clash

Ring

Shout

Echo

Tune out

Be all ears

Chime

Announce

Babble

Jingle

Mellifluous

Discord

Mute

Sniff

Articulate

Aloud

Voice

Vocalize

Argue

Assert

Told

Blaring

Boom

Shriek

Chat

Chatter

Speech

Clatter

Command

Comment

Conversation

Converse

Cry out

Declare

Describe

Squawk

Discuss

Dissonance

Eavesdrop

Express

Groan

Grumble

Utter

Verbalize

Hiss

Lecture

Lend an ear

Speak

Thunderous

Mention

Moan

Mutter

Narrate

Shrill

Sing

Orchestrate

Order

Praise

Purr

Silence

Remark

Resound

Scream

Rumor

Table 2(b) – Auditory Phrases[48]

Sounds good

Don’t give me static

Echo their sentiments

I hear you

I’m in tune with that

Scream to be heard

Let’s talk about it

Tone of conversation

Amplify that point

Orchestrate that

Voice your opinion

It purred like a kitten

Call me

Ask them

The silent treatment

Let me tell you

We are in harmony

Chime in

Lend an ear

It rings true

Debate the issue

It’s a whisper

Sing their praises

Don’t grumble

Loud and clear

They are turning out

Argue the point

Diagram 2 – Auditory Eye Accessing Cues[49]

When someone is in the Auditory Constructed mode, their eyes are at eye level looking toward the left, signifying that they are mentally constructing a sound that is new to them (i.e. the sound of a telephone ringing under water). In contrast, when someone is in the Auditory Recall mode, their eyes are at eye level looking toward the right, indicating that they are remembering a sound they have previously heard. Regardless of whether the person is looking to the left or the right, as long as the eye movement is at ear level, they can accurately be identified as an auditory. Speech patterns should be tailored using auditory words and phrases to increase rapport and the effectiveness of the communication.

Similar to visual eye cues, this auditory tool can be used to assess whether someone is accurately representing what they’ve heard. If a party or witness is asked what he or she overheard at the scene and in response looks to the left, then it’s likely that what is being described is an altered version of the conversation that was heard. If on the other hand, the person recounts parts of the conversation and in doing so, looks to the right, it’s more probable that the description is an accurate representation of what was recalled.

Mediators can also use this tool when being told by one side or the other that they have reached their bottom line and do not have room to negotiate any further. A typical scenario is one where plaintiff’s counsel insists that their client has told them not to take any less than “X” dollars while the defense attorney is resolute that their insurance carrier has told them to try the case if it cannot settle for less than “Y” dollars. The savvy mediator can inquire about each side’s respective settlement authority in caucus while carefully observing the eye movements as the response is given.

If the attorney for either plaintiff or defense looks to the left when answering, then it’s likely that he or she is “constructing” or making-up what they have been told about their authority to settle. In this case, the mediator will have learned that some additional pressure may result in further movement by that side. Conversely, if the attorney responds and simultaneously looks to the right, the person is probably serious about where the negotiation needs to end. For these reasons, advocates will be well served to remain conscious of their eye movements when discussing sensitive issues with the mediator or their adversary; otherwise, they risk unintentionally disclosing more than they would like.

Clues to Identifying Kinesthetics

Kinesthetics make up about 20 percent of the working population.[50] The kinesthetic person receives and organizes information primarily on the basis of body sense and feeling. Kinesthetics will react and respond on an emotional level, often making statements like, “this just doesn’t feel right to me,” “I think I’ve got a handle on it,” or “I’m wounded by their response.” Once a kinesthetic has been identified, communication with them can be improved by incorporating more of the words and phrases in Tables 3(a) and 3(b) into the conversation.

When speaking, kinesthetics tend to look down and to the left (See Diagram 3). They generally move and talk extremely slowly causing those they converse with to get frustrated. Unfortunately, telling a kinesthetic to hurry up and get to the point will only serve to throw them off and cause the conversation to linger even longer as the person tries to reconnect with his or her feelings. The way to convince a kinesthetic to take a particular path is not through logical discussion, but by reaching them at an emotional level.[51]

Table 3(a) – Kinesthetic Words[52]

Feel

Touch

Smooth

Solid

Rough

Grab

Pressure

Gritty

Tight

Uptight

Pull

Handle

Pushy

Soft

Move

Grasp

Texture

Sting

Tough

Thrust

Rub

Heavy

Contact

Sharp

Tickle

Sticky

Firm

Itchy

Bounce

Mime

Sturdy

Support

Concrete

Stumble

Impression

Tackle

Slimy

Wobble

Hit

Dig

Warm

Catch

Snag

Dump

Impact

Absorb

Attach

Attack

Backing

Balance

Bend

Shake up

Cold

Compress

Shocking

Connect

Cool

Cram

Cut

Cutting

Electric

Exhale

Extend

Fall

Fasten

Fear

Worry

Weigh

Unite

Flat

Flush

Fumble

Unbalance

Uncomfortable

Hard

Hot

Hurt

Inhale

Tender

Link

Manipulate

Massage

Merge

Nervous

Point

Tremble

Probe

Push

Ragged

Reach

Relaxed

Resist

Twist

Rugged

Seize

Sense

Tension

Throw

Shuffle

Take

Stable

Steady

Stiff

Stir

Stretch

Table 3(b) – Kinesthetic Phrases[53]

Get a feel for

I’m not comfortable

Manipulate the data

Too hot to handle

It worries me

A solid base

Kick it upstairs

A concrete idea

Tough to deal with

Ill-at-ease

Go for it

Merge our ideas

It scares me

It irritates me

Make a connection

Point it out

Make it tangible

Stop talking … do it

Stir it up

What is the impact

Back up your claim

Toss this around

Tickle it out

Get hold of

Get a grip

Slip through the cracks

Rubs the wrong way

I feel it in my bones

Firm foundation

Heated argument

I’m not following

Going to pieces

Hold on a second

Diagram 3 – Kinesthetic Eye Accessing Cues[54]

When someone is in the Kinesthetic mode, their eyes look down to the left. In this mode, the person can access an internal feeling in response to some external stimuli. For example, the plaintiff may display this eye cue after being asked, “How did the defendant make you feel when you had that discussion?” The eyes react in this way because the person first has to access internal feelings experienced before being able to convey their sentiments in words. If a person is in this mode for an extended period while responding to the question, he or she is probably taking the time to sort through their feelings and may benefit from some assistance. In this scenario, a discussion about their feelings may help uncover the hidden layers that need to be addressed before a breakthrough can be made with this person.

Clues to Identifying Audiodigitals

This last group represents a small 5% portion of the population. Audiodigitals are characterized as individuals who often have conversations with themselves inside their heads. Audiodigitals use words like think and understand, talk more than the average person, and respond well when presented with logical arguments. For additional examples of audiodigital words and phrases, refer to Tables 4(a) and 4(b). Since Audiodigitals tend to spend a lot of time talking to themselves, they are generally slow in answering questions; they need that additional time to internally repeat the question to themselves and internally rehearse the answer before audibly verbalizing their response.[55] As they have this internal dialogue, their eyes move down to the right (See Diagram 4).

Audiodigitals are harder to identify because they exhibit characteristics from the other three major representational systems; this is only because they take the time in advance to rehearse how they will respond. The main difference between the other groups (visuals, auditories and kinesthetics) and an audiodigital is that their behavior is generally instinctive and automatic whereas with an audiodigital, their reaction regardless of the characteristics displayed, is practiced. Mediations with audiodigitals tend to take longer because of the time needed to analyze the negotiation at each step of the way. When dealing with an audiodigital, the best approach is to engage in a principled negotiation such that the offers and demands are supported with reasons justifying the basis for the figures contemplated. When approached in this manner, the audiodigital person will be more open to hearing what the other side has to say and to the possibility of settlement.

Table 4(a) – Audiodigital Words[56]

Accommodate

Analyze

Believe

Benefit

Capability

Change

Circumstances

Comprehend

Conjecture

Consider

Contemplate

Convey

Credibility

Decide

Deem

Deliberate

Engage

Engross

Estimate

Establish

Evaluate

Experience

Facilitate

Fascinate

Guess

Hypothesize

Ideas

Identify

Imagine

Intellectualize

Interest

Inquiry

Judge

Know

Learn

Materialize

Motivate

Need

Negotiate

Ponder

Pretend

Process

Professional

Produce

Qualify

Quality

Recognize

Regard

Remember

Respond

Results

Service

Think

Understand

Utilize

Basic

Specific

Procedure

Interesting

Integrated

Interactive

Modular

Tendency

Obvious

Incremental

Balanced

Virtual

Knowledge

Random

Enhanced

Variable

Value-added

Model

Special

Systematic

Ecological

Applications

Theory

Typical

Optimal

Boundary

Flexibility

Principle

Usual

Compatible

Reciprocal

Concept

Meaning

Excellent

Paradigm

Transitional

Framework

Contingency

Logical

Thoughts

Table 4(b) – Audiodigital Phrases[57]

In regard to your concern

Considering the possibilities

An interesting dilemma

A viable solution

Analyze the potential

Consider the options

Value quality

Promote a philosophy

Take a balanced approach

Diagram 4 – Audiodigital Eye Accessing Cues[58]


When someone is in the Audiodigital mode, their eyes look down to the right, signifying that the person is having an internal conversation with himself or herself. If they verbalized their thoughts, it might sound something like, “I should have been more firm when I said I wouldn’t accept the offer; No one understands what I’m going through; I hope I told them that I still have a lot of pain in my back.” Information is best obtained from an audiodigital when they are caught in the midst of one of these internal conversations with themselves. Take advantage of the opportunity by first pointing out that they appear deep in thought and then asking them to open up and share those thoughts so the problem can be addressed together. Audiodigital people need to talk through the task or decision-making process and feel like they’ve been heard and understood before they can move on or commit to a decision.

III. MODELING

Modeling What Works in Mediation

In every field of work, there is an elite group that excels in what they do because of their innate ability to know what constitutes the difference between the good and the superb. Modeling is the process of observing, analyzing and reproducing the structure of those particular abilities that comprise excellence. Do not be misled to believe that through modeling, years of experience and fine tuning can be transferred and absorbed overnight. Modeling will not instantaneously turn an apprentice into a first rate advocate or a superior mediator. What it will do is provide a framework for rapidly gathering information from another about the structure of what they do that makes them as successful as they are and serve as a vehicle for absorbing that excellence.

NLP posits that success depends on the number of choices of operations or responses available in a particular situation.[59] In other words, an advocate or mediator has a greater chance of success if their repertoire is diverse and their behavior flexible. If the response given to each and every situation is the same, then the response has become automated and habitual. To extract from this pattern of behavior requires openness to learning and experimenting with new techniques; only then will there be the mindset needed to achieve the maximum benefits that modeling has to offer.

Behavior modeling involves observing and mapping the successful processes that underlie another’s approach when working on settling cases. The goal is to identify the essential elements of thought and action required for that person to produce the desired response or outcome.[60] To start, ask the model to agree to commit the time necessary to participate in the modeling process. Once the model has agreed, arrange a time where he or she can be observed in action at a mediation. If this opportunity can be secured, take advantage of it fully by watching and listening to everything the person does from their eye movements, mannerisms and gestures, tone of voice, word choice, posture, and timing of techniques.[61] NLP refers to this first phase of modeling as unconscious uptake.[62]

This phase begins with a state of “not knowing” so that all pre-existing assumptions of why the model is engaging in a certain behavior are dispelled. This phase is an opportunity to get a fresh and unbiased view of what mediation is all about from the model’s perspective. While in this phase, spend time noticing all the details of the model’s environment, what it says about them and how they use it while working through a case. At the heart of modeling is the ability to identify and appreciate the details and most importantly, make sense of them.

Once sufficient data has been gathered from the observations in phase one and solid set of intuitions developed about what it is like to mediate from the model’s perspective, phase two of modeling can begin. In this second phase, the mediation skills are tried out “as if” in the shoes of the person being modeled.[63] While in their shoes, attempt to get the kind of results that the model would achieve had he or she been presented with the same situation. If successful, it is time to move to the third and final phase.

In this last phase, the objective is to fine tune what worked in phase two while achieving the same result being oneself; step out of the shoes of the model and back into your own for this phase. This fine tuning process will begin by systematically leaving out pieces of behaviors or strategies identified while observing the model, to see what really makes a difference in the results being achieved.[64] Anything that is left out that doesn’t make a difference to the results, is not essential to the model. Conversely, if something is taken out that alters the results, then a crucial part of the model has been identified.[65] Using this “subtraction process,”[66] the steps modeled can be reduced to its simplest and most elegant form, which can then be accessed by anyone to replicate the desired behavior.

IV. CONCLUSION

Getting the Most Out of NLP

The NLP principles and guidance offered in this article provide the groundwork for modeling excellence, improving communication and rapport, and developing a greater understanding of the internal representations that guide human behavior. NLP lends itself well to mediation because of the degree of psychological overlay that inherently exists in every conflict. Everyone involved in a mediation, from the parties, their attorneys and even the mediator, is culpable of engaging in some from of psychological gamesmanship in the quest for settlement. Deception, seduction, influence and persuasion are just a few of the many psychological techniques that participants use in mediation to steer the case in the direction that most suits them. NLP offers a unique insight into the mind of others and illuminates the tactics being employed to gain the negotiation edge. Whether an advocate or a mediator, understanding how individuals communicate, why people generalize, delete and distort information and how these psychological facets effect one’s actions is essential to enhancing the probability of success in mediation.

Since NLP, like advocacy or mediation, is not a discipline that can be mastered through reading alone, the only way to get the most out of it is by putting NLP to work in practice. Consider incorporating one or two NLP principles at a time and refrain from integrating any more until the ones already tried have been mastered. Given that the “map is not the territory,” one’s map of the world is only limiting if allowed to be; by adding new features and dimensions to our internal map using NLP, we can continue to grow and expand our repertoire of available skills and behaviors until excellence is achieved to our satisfaction.



[1] Knight, S. (1999). NLP Solutions: How to Model What Works in Business to Make it Work for You. Nicholas Brealey Publishing, 20.

[2] O’Conner, J. & Seymour, J. (1995). Introducing Neuro-Linguistic Programming: Psychological Skills for Understanding and Influencing People. Thorson’s Publishing, 2.

[3] Walter, J. & Bayat, A. (May 2003). Neurolinguistic Programming: Verbal Communication. Student BMJ, Vol. 11, p. 163.

[4]Id.

[5] Lakin, Ph.D., D. (2000). The Unfair Advantage – Sell with NLP! Lakin Associates.

[6] Sandoval, V. & Adams, S. (Aug. 2001). Subtle Skills for Building Rapport: Using Neuro-Linguistic Programming in the Interview Room. FBI Law Enforcement Bulletin. Vol. 70, p. 1.

[7] James MS, Ph.D., T. & Shephard, BSc, DES., D. (2001). Presenting Magically – Transforming Your Stage Presence with NLP. Crown House Publishing LLC.

[8] Id. at 13.

[9] Id.

[10] Id. at 14.

[11] Id.

[12] Id.

[13] Id.

[14] Dilts, Robert B. (1998). Modeling with NLP. Meta Publications, 3 – 4.

[15] Id. at 7.

[16] Knight., Supra note 1 at 54.

[17] Id.

[18] Dilts, Supra note 14 at 12.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] James, Supra note 7 at 18.

[24] Knight, Supra note 1 at 88.

[25] Id. at 131.

[26] Id. at 155.

[27] Id.

[28] Mehrabian and Ferris, (1967). Inference of Attitudes from Nonverbal Communication in Two Channels. The Journal of Counseling Psychology, Vol. 31, p 248-53.

[29] Lakin, Supra note 5 at 12.

[30] Id.

[31] Id.

[32] James, Supra note 7 at 65.

[33] Lakin, Supra note 5 at 14.

[34] Id. at 15.

[35] Id. at 16.

[36] Id.

[37] Bradbury, A. (2000). Develop Your NLP Skills. Kogan Page Limited, 78.

[38] Id. at 79.

[39] Id. at 80.

[40] Id.

[41] James, Supra note 7 at 127; Lakin, Supra note 4 at 39.

[42] Lakin, Supra note 5 at 39.

[43] The eye cues are depicted as if you are looking at another person.

[44] Bradbury, Supra note 37 at 81.

[45] Id.

[46] Id.

[47] James, Supra note 7 at 127; Lakin, Supra note 4 at 40.

[48] Lakin, Supra note 5 at 40.

[49] The eye cues are depicted as if you are looking at another person.

[50] Bradbury, Supra note 37 at 84.

[51] Walter, Supra note 3 at 164.

[52] James, Supra note 7 at 128; Lakin, Supra note 4 at 41.

[53] Lakin, Supra note 5 at 41.

[54] This eye cue is depicted as if you are looking at another person.

[55] Walter, Supra note 3 at 164.

[56] James, Supra note 7 at 129; Lakin, Supra note 4 at 42.

[57] Lakin, Supra note 5 at 42.

[58] This eye cue is depicted as if you are looking at another person.

[59] O’Connor, Supra note 2 at 71.

[60] Dilts, Supra note 14 at 29.

[61] Knight, Supra note 1 at 39.

[62] Dilts Supra note 14 at 55.

[63] Id.

[64] Id. at 56.

[65] Id.

[66] Id.

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