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by Joe Markowitz
July 2012

Mediation's Place by Joe Markowitz

Joe Markowitz

At a mediation seminar I attended this week, Doug Noll, a mediator from Fresno, California, along with Don Philbin, a mediator from Texas, explained that hardly any of the information we process in communication with others is contained in their words. Nearly all of it lies in people's gestures, facial expressions, tone of voice, and other non-verbal cues. Lawyers have trouble accepting this fact, trained as we are in the importance of words. And we haven't grasped its full implications.

What was most interesting to me was a technique Noll tried to teach us that demonstrates to another person that they have been heard and understood. Instead of the frequently-taught method of summarizing the gist of what someone has just said, and asking them if we understood them, he thinks we can be more effective by reading the emotional content of another person's communication. Affect labeling is the technical term for this technique, and it follows from the idea that most communication is non-verbal. The way to do it--easier said than done--is to describe the emotion you observe, by saying something as simple as, "you're angry," or "you're frustrated," or "you're excited." If you're right, people will almost involuntarily start nodding their heads in agreement. And they will tell you that they finally feel listened to and understood, even if you didn't understand the verbal content of a single thing they said.

I asked Noll if he even pays attention to the meaning of people's words. Well sure, at some level he listens to that, he replied. But that is generally information he already learned from the parties' briefs. It's not the main thing he needs to process during at least that part of a mediation where people are trying to explain what caused the conflict.

Many of the participants in this training session had a hard time accepting the fact that understanding and dealing with people's emotional responses is more important than analyzing the content of their communications. That's because we are lawyers. We are trained to think that human beings are rational creatures. That words matter. That the correct answer to a legal problem can be determined from a description of the fact pattern. But when judges reach results that don't seem to conform to law or logic, we are surprised to learn that they too might sometimes be making decisions on an emotional rather than a rational level.

Advances in psychology and neuroscience in the last few decades lay to rest the illusion that humans lead with logic. Only after we try to understand and reach people on an emotional level can we even free up the logical part of their natures to deal with conflict in a rational way.


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   

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