John Marshall (1755-1835 Supreme Court Chief Justice
I take no ownership in the title. It is the motto of the Florida Conflict Resolution Consortium and appears at the top of its monthly Leadership Letter. The ingenious twist on Smith Barney’s old commercial line could not be more appropriate for mediators, as well as for counsel involved in mediations.
Alas, most of us honor the maxim in the breach. We find it difficult to keep our mouths shut and let the disputants do the talking. Of course, there is a time for mediators to speak, but too often we are impatient with silence and, just as a party or counsel is about to say something significant, we throw cold water on the impulse by jumping into that maddeningly hushed stillness, that brief moment when that person’s brains are silently working overtime to add something meaningful to the process.
Few of us can tolerate a long silence in a discussion or conversation. I know. I am rarely one of the few, so, as our mothers used to admonish us, do as I say, not as I do. Remember that that silence is precisely the time when people often are engaging in careful reflection about how they should proceed, how they can contribute to the process of dispute resolution. Remember, when the mediator talks, people listen, they don’t speak, and they have little opportunity to reflect.
The mediator’s role is to ask questions, not to make speeches. Oh, it can be appropriate at times to do a little soft scolding, especially in the privacy of a caucus, but, most of the time, we should let the parties and their counsel do the talking. Also, as part of our mediating role, we should from time to time recap what is said, in order to summarize and distill the issues at hand, thus moving the process inexorably along toward its ultimate goal.
It is not easy for a mediator to desist from speaking. After all, we are the wise overseers of a process in which we have superior knowledge, right? And, in many cases, we enjoy the enviable wisdom of many more years of legal experience, right? Wrong — even if we’re right! The mediator’s job is to suggest and inquire, to nudge the parties in a constructive direction, not to climb up on our soapbox and declare our brilliance (and, to paraphrase Abraham Lincoln, perhaps remove all doubt about being thought a fool).
And, counsel, don’t get smug. Advocates are not immune from this unproductive aspect of human nature. How often have we watched an attorney leap into a hush when opposing counsel suddenly stops talking, rather than waiting to see if the latter might break the silence and add something rele vant to the issues, sometimes to the advantage of the former? The impulse to talk, especially in a profession that thrives on sparkling oratory, is powerful, powerful enough occasionally to set aside good judgment merely in order to bring to an end a prolonged silence.
“When we listen, people talk.” Think about it next time you have that irresistible urge to talk rather than listen. You may hear something interesting.