Body language interpretations are legion. Watch the arms crossed over the chest in a mediation and you probably are watching an impasse in the making. Other unconscious movements include:
Hand-wringing: Thinking over an idea
Rubbing the nose: Rejection, disagreement
Patting the hair: Approval
Steepling of fingers: Feeling of superiority
Rubbing the eyes: An inner desire not to see something that might change one’s mind
Fingers interlocked, elbows on table: Inward struggle to keep silent
Tugging at shirt or blouse cuff: Self-satisfaction
Legs crossed, one foot swinging: Desire to walk away
Arms crossed over chest: Reluctance to change one’s mind
Okay, Ahrens, you might say, we’ve heard all that before. What’s the point? And how does it relate to mediation? Just this and in just this way: All mediators have had occasions where one or more of the parties are not present, and the others agree to proceed without that participant, or perhaps have them join by telephone conference. The mediator does the best he or she can to help the parties reach a settlement. Too often, however, an impasse is the result, and there are reasons. A significant feature of mediation is the opportunity afforded the parties and their counsel to meet and get to know each other. Occasionally, they see each other for the first time.
How will the plaintiff appear as a witness? (The behavior of your own client in a “confrontational” setting can help you assess your chances in court. Some attorneys take the second chair in order to watch their clients’ reactions to what the mediator and the other side is saying.) What are the professional and oratorical skills of counsel? What are the emotional or stress levels displayed by parties or their counsel?
I recently impassed a mediation in which the insurance adjuster was available only by telephone. She was obstreperous in the joint session and unnecessarily aggressive in caucus. Even given an obviously troublesome personality trait, it was, I believed, easy for her to behave this way, because she was sheltered from the visible reactions of and respectful accountability to those present.
I cannot believe she would have behaved the way she did, had she been forced to look into the eyes of opposing counsel, his client and the mediator—perhaps even of her own attorney. Some folks simply act differently when on the telephone, not unlike their behavior behind the wheel of their SUV.
Watch the eyes, my friends, and the body language. They may tell you as much about the folks on the other side of the table as what they’re saying. Have you ever watched Marcel Marceau, the famous mime? He could communicate very well without ever saying a word.
Lawyers, of course, would choke on the silence, but I hope my point is made. At times, an absence cannot be avoided, and rescheduling can be difficult. Whenever possible, however, do yourself and your client a favor. Have them at the mediation proceeding. It can be a valuable learning experience for everyone involved, including your client, and can go a long way toward assuring a settlement and avoiding an impasse.