Law Tips: Eliciting Change Talk in Mediation

Doug Noll, a fulltime peacemaker, emphasizes the importance of “micro-moments of emotion” when mediators should respond appropriately in order to bring the parties to an amicable settlement. Mr. Noll specializes in difficult, complex, and intractable conflicts and he trains others in those conflict resolution skills. A segment of his mediation training focuses on eliciting change talk. Today, Doug is generously providing an outline of how change talk can assist in a positive outcome in your clients’ settlement. Let’s learn about DARN C:

Eliciting Change Talk

Eliciting change talk, or self motivational statements, is an important component in mediationsettlements. This strategy helps to establish and resolve ambivalence and move forward.

Change talk is the party making statements that are in favor of resolution, which suggests that the party is becoming more ready, willing, and able to settle. However, although a mediator may want to hear change talk, she avoids imposing it. The goal is to elicit it from the party in a collaborative fashion. Eliciting change talk has to come about through a consensual, negotiated process between the mediator, the party, and counsel. Change talk can occur in several forms that make up the acronym DARN C.

D =Desire statements. Statements indicating a desire to make a change.

  • “I’d like to get this over with if I could.”
  • “I wish I could make my life better.”
  • “I want to take better care of my kids.”
  • “Getting past this would make me feel so much better about myself.”

A= Ability statements. Statements that speak to the party’s self-efficacy or belief in the ability tomake changes.

  • “I think I could do that.”
  • “That might be possible.”
  • “I’m thinking I might be able to do that.”
  • “If I just had enough money to survive until I got back on my feet, I could probably be OK.”

R = Reasons statements. Statements that reflect the reasons the party gives for considering a change.

  • “I have to settle because the stress and cost is driving me to bankruptcy.”
  • “To keep my sanity, I should probably figure a way out of this mess.”
  • “My marriage is over and I might as well just accept it and move on.”
  • “I don’t like my kids to see me like this.”

N = Need statements. Statements that indicate a need for change. These can be similar to R statements, but the emphasis is more affective or emotional than a more cognitive R statement.

  • “It’s really important to get my life back.”
  • “Something has to change or my marriage will break.”
  • “I’ll die if I keep going like this.”

These DARN statements are important to recognize and then emphasize through reflecting or directing the party to further elaboration. These statements are avenues to the most important part of change talk, the “C” in the DARN C.

C = Commitment language. Commitment language is the strength of change talk.

For example, aperson could say, “I might settle”, or “I could consider settling”, or “I’m planning to settle” or “I will settle”. The last two examples represent authentic commitment. The strength of the verb in the sentence corresponds with the strength of the commitment language.

An important mediator skill is addressing party commitment to change over the course of the mediation by recognizing and responding to change talk. The goal is to strengthen the commitment level.

Amrhein and Miller (2003), a linguist and a psychologist respectively, have shown that while allelements of change talk can be important in building commitment language, it is the stronger commitment statements that predict positive behavior outcomes. In other words, the more a party is making strong commitment statements like “I will do this” and “I am going to do that,” the more likely the party’s behavior is going to change.

I appreciate the contributions of Douglas Noll, both for Law Tips and as a faculty member for ICLEF. His DARN C pointers surely can help to recognize and strengthen the commitments of parties in various situations. I hope you have enhanced your mediation skills through his advice.

For further information on Mr. Noll’s training you may want to visit his website: www.legalpronegotiator.com. There are two quality seminars available live from ICLEF in the coming months that offer you the opportunity to earn Civil Mediation Education hours. Click a title below for full details:

CME for Family Mediators - 6 CLE / 6 CME - November 13

Epic Change: The Evolution of the Legal Profession - 3 CLE / 3 CME / .5 E - December 3

_________________________________________________________________________________

About our Law Tips faculty participant:
Douglas E. Noll, J.D., M. A. In addition to being a keynote speaker and negotiation trainer, Doug is a full time peacemaker and mediator. He is an adjunct professor of law and has a Masters Degree in Peacemaking and Conflict Studies. Mr. Noll was a business and commercial trial lawyer for 22 years before turning to peacemaking. He is a Fellow of the International Academy of Mediators, a Distinguished Fellow of the American College of Civil Trial Mediators and on the American Arbitration Association panel of mediators and arbitrators. With his colleague Laurel Kaufer, Mr. Noll, co-founded the award-winning pro bono project, Prison of Peace, training life inmates in maximum security prisons to live lives of service as peacemakers and mediators. He is the author of  Elusive Peace: How Modern Diplomatic Strategies Could Better Resolve World Conflicts (Prometheus Books, April 2011).

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014

Indiana Law Update 2014: The Tradition of Excellence Continues

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014

Last week on September 23-24, a record attendence gathered in six locations around the state to experience this year’s Judge Robert H. Staton Indiana Law UpdateTM program. This was the 36th year for the program. It has become known for its scholarly and enjoyable review of the substantive trends, changes and developments in Indiana Law.

This year’s program presented comprehensive updates in 18 areas of practice. Led by the Hon. Melissa S. May from the Indiana Court of Appeals, the program featured 21 presenters, 8 of which were new to the program for 2014. The mix of personalities, presentation styles, topical variety and humor sprinkled in along the way help to make it one of the most popular CLE events each year.

One of the hallmarks of the Indiana Law UpdateTM program is the law student scholarship contribution. Each of the four accredited law schools in Indiana benefit from the program.

If you missed this year’s live program, there are still many opportunities to attend it through a multitude of video replays occurring around the state. Click Here for the site nearest you. The planning for next year’s program is already well underway. It will occur on September 9-10, 2015. The live in-person session will be in the Sagamore Ballroom of the Indiana Convention Center. As was the case the last two years, there will also be many live group webcast locations available around the state. Make plans now and mark your calendars for the Original Indiana Law UpdateTM program for 2015!

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014: An ICLEF 12 CLE Seminar

 

Posted in News0 Comments

Family Law Case Review: IN Supreme Court Holds Spousal Maintenance is Modifiable if Agreement so Provides

Case: Barbara J. Pohl v. Michael G. Pohl
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Indiana Supreme Court holds that a spousal maintenance provision in a settlement agreement, regardless of its grounds, is modifiable only if the agreement so provides. This decision resolves the question left open in Voigt, which is whether a trial court has the authority to modify a spousal maintenance provision of a settlement agreement if the obligation were in the nature of a support award that the court had legal authority to issue in the first place (e.g., incapacity-based maintenance).

HELD: The modification of agreed upon maintenance awards are subject to the “substantial and continuing change in circumstances” standard.

FACTS AND PROCEDURAL HISTORY:
Husband and Wife divorced in 2009. During the marriage, Husband had been receiving Social Security disability payments as a result of a back injury. The parties’ original divorce agreement addressed property division, along with custody and support of their minor child. However, several months later, the parties also submitted to the trial court, and the trial court approved, an addendum to their final Decree which obligated Wife, beginning in June 2013, to pay $4,000 per month spousal maintenance to Husband “until further order of the court or agreement of the parties.”

In 2012, as the obligation to start making these maintenance payments approached, Wife filed a petition to modify the spousal maintenance obligation, citing an improvement in Husband’s financial circumstances (e.g., his Social Security income increased substantially, and Husband’s fiancée was making substantial contributions to household finances). Wife requested that the $4,000/mo obligation be reduced to $1,000/mo. After a hearing, the trial court declined to modify Wife’s spousal maintenance obligation, noting that the agreement was not intended to be modifiable and that Wife had not demonstrated fraud, duress, or mistake to set it aside. Wife appealed.

Last December, the Court of Appeals concluded that the basis for the maintenance in the addendum to the Decree arose from Husband’s disability. Therefore, unlike in Voigt, the trial court had the authority to modify the maintenance order, including based upon a substantial and continuing change in circumstances.

The Indiana Supreme Court granted transfer. The Court essentially weighed the competing interests of “principles of contract finality” and the risks of undue hardship arising from unforeseen circumstances. Engaging in essentially a cost-benefit analysis, the Court concluded: “presuming the contract to be modifiable would defy grown-ups’ freedom of contract more frequently than it would save disabled spouses from being stuck with an inadequate award or able-bodied spouses from an award that had become oppressive…. even when a court could have unilaterally ordered an identical maintenance award, we will presume the parties intended their agreement to be final and non-modifiable unless they specifically provided otherwise.”

However, in this particular case, the parties’ did contemplate the possibility of future court modification, with the added phrase in their agreement: “….until further order of the court or agreement of the parties.” This language renders the order modifiable in the future by the trial court. Here, the trial court declined to modify the maintenance order in part based upon Wife’s failure to prove fraud, duress, or mistake. However, since Wife was seeking to modify an order, not have it set aside, that standard should not been applied and instead the trial court should have used the standard of “substantial and continuing change of circumstances.”

The trial court’s order denying Wife’s requested modification was reversed, with instructions on remand to consider whether the evidence established substantial and continuing circumstances that make the agreed upon maintenance amount unreasonable and, if so, determine an appropriate modification.

To view the text of this opinion in its entirety, click here: Barbara J. Pohl v. Michael G. Pohl

_________________________________________________________________________________

James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review, News0 Comments

Hon. Melissa S May accepts the Excellence in CLE Award from ICLEF President Alan Hux

The Hon. Melissa S. May and Robert C. Beasley Receive the Excellence in CLE Award

At a special dinner prior to ICLEF’s most recent Board of Directors meeting, ICLEF President Alan M. Hux took the occasion to present the Excellence in Continuing Legal Education Award in recognition of two extraordinary people to ICLEF, the Honorable Melissa S. May, Indiana Court of Appeals, and Muncie attorney Robert C. Beasley.

ICLEF's Excellence in CLE Awards presented to the Honorable Melissa S. May and Robert C. Beasley, July 2014

The Excellence in Continuing Legal Education Award is not presented annually, but is presented only when merited. In fact, this award has been presented only once before, to the former Chief Justice to the Supreme Court of Indiana, the Honorable Randall T. Sheperd upon his retirement from the state’s highest bench.

The Honorable Melissa S. May
Our first recipient of the evening was the Honorable Melissa S. May. Judge May has been a long-time friend of ICLEF and has served the organization and the CLE community in many capacities over the years.

In addition to serving as a member of Indiana’s Continuing Legal Education Commission for several years, she has also served on the Board of Directors of ICLEF, has been an ICLEF Committee Chairperson, a program faculty member and a Program Chairperson.Hon. Melissa S May accepts the Excellence in CLE Award from ICLEF President Alan Hux

Currently, she continues to lead ICLEF’s annual Trial Advocacy Skills College; a four-day intensive workshop that seeks to strengthen Indiana’s trial litigators.

Perhaps most notably, however, Judge May serves as program chair of ICLEF’s flagship seminar, the annual Indiana Law Update. The Robert H. Staton Indiana Law Update seminar requires a chair that can lead it into the future, while maintaining the tradition, integrity and quality the seminar and its namesake have long held.

“When we approached Judge May with the invitation to chair Indiana Law Update,” stated President Alan Hux, “she did not hesitate and simply asked How can I help?”

Judge May has provided great leadership and a tireless effort in fulfilling the goals for this most significant CLE seminar.

Robert C. Beasley
While Bob Beasley continues to actively serve on the ICLEF Board of Directors , a role he has served before, Bob continues to do much to help guide ICLEF in the most appropriate and effective direction. Most significantly, Bob was recognized for being one of ICLEF’s most loyal and trustworthy friends over the years.

Beasley Awarded Excellence in CLE Recently, Bob stepped down as the Program Chair of ICLEF’s Year in Review seminar, a position he had held since the inception of the seminar over 20 years ago. Since its humble beginnings, the Year in Review seminar has become one of the most well respected ICLEF seminars and the first to be provided by live, simultaneous broadcasts long before the concept of distance learning became a reality in continuing legal education.

We Owe Much Gratitude
ICLEF is proud to present these two individuals with our highest honor as we offer the gratitude of Indiana’s lawyers for the efforts of innovative leadership and the pursuit of excellence in our state’s continuing legal education.

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Blog, News0 Comments