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<xTITLE>The Significance of Nonverbal Communication in Mediation and Arbitration</xTITLE>

The Significance of Nonverbal Communication in Mediation and Arbitration

by Joan Kessler
August 2021

JAMS ADR Blog by Chris Poole

Joan Kessler

Nonverbal communication may impact participants’ thoughts and emotions in a mediation or arbitration and should be considered when evaluating communication feedback during these sessions. While the words that are spoken are critical to assessing communication, assessing the meaning of words through evaluating nonverbal gestures and cues, body language and eye contact may be equally or even more important in sending a message and evaluating a message in the alternative dispute resolution context or in any context of human communication.

Mediation

For instance, the issue of time—or quite simply being late—may send a message even though no actual words are spoken. In the mediation context, when a participant shows up late to a hearing, those who arrived on time may feel insulted, even though that was probably not that person’s intention. Some people feel that punctuality is critical, while others do not value it as a priority. This may or may not be culturally related, but being aware of differences may help avoid hostility among those who arrive on time. As a mediator, I have dealt with this many times and have often provided some insight on this cultural characteristic to ensure all parties have an understanding of each other.

Another nonverbal cue is gestures or body language. For instance, in a mediation or arbitration, if someone folds his or her arms, even onscreen in a virtual proceeding, it may communicate hostility or dissatisfaction. Participants should try to avoid doing this so that their words are received by others as they were intended.

Eye contact or the rolling of one’s eyes is also another non-verbal cue. This may be very important in assessing a reaction to a message or evaluating someone’s reaction to what you have said or what is being said in a mediation or arbitration context, even in a virtual session. Rolling of the eyes can be a sign of exasperation and may be interpreted by the receiver as rude and unprofessional. This may be even more pronounced in a virtual proceeding because when someone looks directly into the camera, all other participants may feel that person is looking right at them.

Personal space also comes into play. Some people like to stand close to the person they are communicating with and even touch that person, while others prefer a bit more personal space. This is sometimes culturally related. Carefully assess the comfort level of the receiver of your messages in a mediation or arbitration and adjust the distance accordingly. Be careful of touching him or her, as it may be unwanted and create discomfort.

Be aware of these nonverbal cues anytime you are in an arbitration or mediation, even in a virtual one, or any context that involves communicating with others.

Joan B. Kessler, J.D., Ph.D., is a mediator, arbitrator and special master at JAMS.

Phoebe King, who is focusing on employment law, is a 3L at Loyola Law School and will earn her J.D. 2022.

Biography


Joan B. Kessler, Esq., Ph.D. is a neutral at JAMS with more than 15 years’ experience as an ADR professional. Dr. Kessler has a Ph.D. in communications and experience with empirical research and statistical analysis.  She has mediated and arbitrated hundreds of diverse matters, including individual and class action employment; real property; business/commercial, including partnership and shareholder disputes; estate/probate/trust; insurance; and entertainment cases.  With a law career spanning more than 30 years, she has the legal experience and knowledge to quickly understand complex legal issues.  Dr. Kessler’s 10-plus years of experience as a jury researcher and consultant affords her the ability to provide key insights into jury dynamics. 

Dr. Kessler is a uniquely qualified mediator, arbitrator and neutral evaluator whose training and education allow her to communicate effectively with attorneys and all parties involved in her matters.  Her background in communications helps her to develop a rapport with even the most challenging, combative and high-profile personalities.  She possesses a keen ability to bring parties together to reach resolution on even the most contentious of matters.  Dr. Kessler uses her ability to speak Spanish and her understanding of inter-cultural uniqueness in Korean, Persian, Israeli, Armenian, and other cultures to help resolve disputes through mediation. 



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