It is commonplace that mediation should be safe and comfortable and promote a spirit of cooperation. The effective mediator contributes to these ends both verbally and nonverbally. Most trained mediators are adept with verbal mediation strategies but may be less familiar with the nonverbal dimension. Nonverbal effectiveness not only comes through sensitive planning and making appropriate choices, but also through anticipating and sidestepping errors that might generate impasse.
Nonverbal communication encompasses all the ways we communicate other than through the use of words. The verbal (i.e., words) and the nonverbal together generate a mosaic resulting in a meaningful message. Where words mainly carry the message content, the nonverbal enhances emotional meaning. It is said that every expressed message has two meanings, i.e., what is meant using words (verbal) and what is said nonverbally. Although the nonverbal, at times, can stand alone (e.g., a clinched fist), usually it works with the verbal to generate clear and, most likely, effective messages.
It is important to realize that it is fallacious to draw complex inferences from isolated nonverbal cues. For instance, a person who crosses his/her arms is not necessarily being resistant, it could simply be that he/she is responding to a chill in the room. Although an effective mediator will look for additional cues before drawing a complex inference, an isolated cue might trigger a probe for greater understanding. In this article we isolate nine aspects of nonverbal behavior relevant to mediation and indicate how the mediator might consider each and make effective choices regarding him/herself and the situation.
The scientific label for nonverbal vocal expression is paralinguistics. Relevant to mediation, the voice has two dimensions — voice set and vocalizations. Voice set refers to information revealed about a speaker through the sound of the voice, i.e., maturity, gender, self-concept and psychological condition, while vocalizations are non-word sounds, such as yawning, laughing and crying, that are often used to express emotion.
The mediator should be highly aware of his/her own voice set. A deep and steady vocal tone can help communicate maturity, credibility, professionalism and calmness. To these ends the mediator’s expression is generally free of dominant vocalizations by avoiding flares in pitch and rate. This is especially important as the parties are likely to model the tone set by the mediation. To promote a perception of fairness and neutrality the amount of mediator vocalizations toward each party should be about equal.
The alert mediator will attend to messages expressed through vocalizations. For instance, a sigh of despair by a party when reflecting what the other will not do might provide an insight into an underlying interest. Regarding vocalizations, in a small claims dispute a defendant objected to paying a roofer’s minor add-on charge for lumber. In caucus, the defendant sighed and said “and the roof leaks but he’ll never fix it.” The alert mediator would have processed the sigh of despair. No doubt the defendant would have agreed to pay the add-on charge if the settlement had obligated the roofer to fix the leak in a reasonable amount of time.
The study of communication through the allocation of space is referred to as proxemics, (distance between persons, location, seating arrangement, etc.). Proper social distance is when persons feel comfortable in social situations. Although there are cultural variations, social distance in the U.S. is about four to seven feet. Mediation should occur on neutral territory so neither party will have the “home court advantage.” Ideally, a caucus will occur in a different location than the mediation. If parties are potentially hostile, they should be kept separated prior to the mediation.
Seating arrangement is a variation on the use of space which can regulate social distance among the mediator and the parties. A rectangular table is often present; if used incorrectly, it can become as a symbol of the parties’ differences and hamper the cooperation the mediator wants to generate. One seating arrangement seems highly workable. At the onset of the mediation the parties, separated by an empty chair, are seated on the same side of the table with the mediator on the opposite side (see Modonik p.8). During the storytelling phase each party will speak primarily to the mediator; however, in the discussion and agreement phases, when the parties talk to each other, they can face each other and talk over the chair. Support persons should sit near, but slightly behind, their respective spokespersons. A similar triangular pattern could be superimposed on a round table. In any case, the mediator should sit equidistant from the parties. Closer proximity to one may cause the other to generate a perception of mediator bias. It is also important that the parties are seated in identical chairs so that one party does not sit higher than the other. When preparing to caucus, the mediator and the party should exit the mediation room and “go to” the caucus location. It would be an error for the mediator to ask one party to temporarily leave the mediation location allowing the exiting party a potential opportunity to listen in on the caucus discussion.
The study of the use of objects to communicate is objectics. Objects can range from props to jewelry, to furniture, to support persons. The mediator should provide the parties with pencil and paper and encourage them to jot down objections or concerns as they occur. This politely instructs each party to not interrupt when the other is telling his/her side of the dispute. Objects, as props, are sometimes used to provide explanations or support for arguments. When both parties are mutually focused on an object, a spirit of cooperation is enhanced. A small flower in a vase could be placed on the table to evoke a desire for peace. In some cultures, parties bring objects symbolizing the dispute to be destroyed upon arriving at a settlement. The mediator, however, should ensure that such objects will not create perceptions of danger or discomfort. Occasionally, the parties will use persons as objects. The number of persons associated with one side might generate a sense of power, i.e., ganging up. In concern for fairness, the mediator should monitor the number of support persons and allow each party to select roughly an equal amount.
Objects can help identify a mediator’s role through a badge, lapel pin or professional attire. However, with professionalism in mind, the mediator should adapt to the attire of the parties, i.e., the mediator’s attire could be different when dealing with juveniles and adults. In adult-adult disputes mediators should default to basic professional standards. Perhaps overt efforts at power dressing on the part of the mediator might attract undue attention to the mediator and serve to alienate the parties.
The study of how persons use color to communicate is colorics. It refers to the color of walls, clothes, objects, etc. When arranging the mediation, the mediator should select a tranquil environment of pale green or pale blue walls. A gang member may try to wear gang colors to intimidate the other party. The mediator should be aware of local gang colors and determine if the colors are negatively influencing the mediation; if so, the mediator should use his/her authority to prevent the display. Studies of business attire suggest that dark blue and dark grey tend to communicate authority and credibility. To these ends, the mediator should select his/her colors carefully.
Facial expressions, called pictics, in Western culture are highly expressive of emotional states. The human face exhibits six primary emotions: happiness, sadness, surprise, fear, anger, and disgust or contempt. A child’s facial expressions will easily register feelings of happiness or sadness, but by adulthood, socialization has taught us to occasionally conceal or alter our facial expressions to mask or minimize our true emotions. For example, the recipient of a less than undesirable gift is likely to show surprise and happiness rather than disappointment.
Since facial expressions can be contrary to underlying emotions, a mediator must be astute to what a person’s facial expression might be suggesting rather than actually conveying. For example, a disputant who smiles frequently while the other disputant is stating his/her side of the story might be indicating the level of discomfort and anxiety. It can be beneficial for the mediator to comment on a facial expression and probe the disputant in order to elaborate on what is being communicated. The mediator is reminded that his/her feelings about the content of the mediation should not enter in. Hence, the mediator should learn to control his/her facial displays. In short, even when surprised, the mediator should not flinch or raise an eyebrow.
The study of communication through the eyes is oculesics. Using their eyes, parties can communicate attitudes of cooperation and non-cooperation. A juvenile who closes his/her eyes or participates in eyeball rolling is likely bored and in a mood that is not conducive to mediation. This is usually accompanied by other physical cues such as slumping and tapping. Although there are cultural interpretations, avoiding eye contact with the mediator and the other party may send an emotional message that needs to be probed in caucus. The eye contact of the mediator can serve as a directional indicator of communication. The amount of mediator eye contact should be relatively equal between the parties.
The use of body movement to communicate is kinesics. The primary kinesic components are gestures (nods, hand movement, etc) and posture. Gestures, evidenced by the fact that hand movements produce sign language, constitute a rich area of nonverbal communication. Some movements, called illustrators, are direct indicators of verbal messages. For example, a disputant who is stretching and yawning is likely saying he/she is tired of the process. An angry disputant might point a finger to accentuate an argument. The alert mediator will probe to determine if the behavior is threatening and ask that it be curtailed. Adaptors are movements that help a party respond to a personal need. As mentioned earlier, a disputant who crosses his/her arms might be adapting to the air conditioning rather than conveying resistance or defensiveness. In such cases, the mediator should seek additional cues rather than draw complex inferences from a single gesture. There are other movements, called regulators, exemplified by such actions of a disputant suddenly sitting upright and pulling his/her chair closer and leaning forward with elbows on the table. This usually indicates a heightened interest in the topic and a desire to be more involved in the discussion. This type of action is often accompanied by direct eye contact and a vocal utterance indicating a desire to speak.
In keeping with expectations of professionalism, alertness and credibility, the mediator should maintain an upright posture. Hand gestures should be used sparingly–perhaps to direct interaction. The mediator should make sure that his/her movements compliment verbal messages and serve to promote perceptions of comfort, safety and cooperation.
Time is referred to as chronemics. Some people are known as being monochronic; they prefer to do one thing at a time, giving considerable attention to deadlines and schedules. Others are polychronic; they don’t worry about schedules, believing they can do several things at once. Polychronic individuals value relationships over work and are less concerned about deadlines than monochronic individuals. Although there is a growing Latin American population in the U.S. that is polychronic by origin, Americans tend to be predominately monochronic.
A monochromic mediator may make the error of assuming that parties entering the mediation process are monochronic and will adhere to his/her timelines. This can be problematic if one or both parties are polychromic and the mediator makes the faulty assumption that they are not serious about mediating the dispute. If one party is polychronic the mediator should have something for the monochronic party to do (filling out forms, etc) while waiting for the other party to arrive. The mediator, who should never be late him/herself, might negotiate time management expectations at the beginning of the process.
The technical term for touch is haptics. Touch is an area of nonverbal communication that is highly prone to communication problems. A person’s touch ethic, i.e., the amount of touch one initiates and tolerates, is formed through childhood exposure to parents and extended family. Whether affectionate touch was commonly demonstrated between family members will determine a person’s touch ethic and the extent he/she would prefer a hug to a handshake or appreciate a pat on the back.
Apart from the introductory (and possibly, congratulatory) handshake, touch is not a form of expression common to mediation. The mediator should always be alert to such behavior between the disputants and be prepared to intercede if aggressive touch is initiated. There are rare instances when touch is acceptable such as when one party is a relational couple and one rests a hand on the other’s knee to provide support and reassurance.
In conclusion, nonverbal behavior is important and, when used thoughtfully, can contribute to mediation effectiveness. The mediator should ensure consistency between his/her verbal and nonverbal cues and model the nonverbal behaviors the parties should adopt. In this article we have explicated nine aspects of nonverbal behavior and related them to mediation. We have indicated that mediators should attend to crucial aspects of their own nonverbal behavior. The mediator also supports the mediation process by avoiding drawing complex inferences from isolated nonverbal cues and probing for information from the parties to confirm or negate non-verbal messages.
Modonik, B. Managing the mediation environment. mediate.com. (retrieved 11/04).
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