Lawyers face a different set of challenges representing clients in mediation compared to trial. Litigants attempt to persuade a neutral jury to embrace their perspective of the case. Mediation advocates try to convince their adversaries of their perspective. Such advocates would be wise to remember Friedrich Nietzsche’s statement: “There are no facts, just interpretations.”
This article will address the interpersonal conflict communication skills necessary to effectively advocate in mediation.
Strive to understand through active listening
In trial, litigants address juries in their opening statements and final arguments. In mediation, advocates need to establish a two-way dialogue with the other parties by talking with them. Dialogue is facilitated by active listening. In mediation, advocates are often unsuccessful in creating this dialogue because of a lack of active listening.
Research indicates that most people are not good listeners and ignore 75% to 90% of what is said to them. The average listener does not actively listen. Instead of listening to the speaker, most listeners use the “listening time” to think of a response to the speaker’s statement. Active listening requires the listener’s undivided attention on the speaker by watching and listening to them.
In active listening, a listener first must listen to the speaker and then summarize in their own words what the speaker said to them. The speaker then tells the listener if the summary was accurate and complete. This technique is not used for every statement; however, it is used to help clarify important facts, issues and needs.
Active listening ensures that the listener understands what was said to them. It makes the speaker feel listened to and acknowledged and it builds trust and rapport between the participants. Clients also need to be understood, and will similarly benefit from active listening by their lawyer.
Avoid communication barriers
It is important to avoid communication barriers in mediation because they disrupt dialogue and often escalate conflict. Communication barriers tend to be antagonistic, face-losing interactions. Such barriers put the other person on the defensive and can invoke a negative response. “You statements,” judging or coercing the other party, self-serving biases, attribution error, and poor interpersonal conflict communication skills are all barriers to communication.
For example, the use of “You” (blaming) statements instead of “I” (caring) statements can inflame the other side. Judging or threatening statements about the other party can be counterproductive and often include incorrect assumptions. Self-serving biases can lead advocates to view the facts of the case only from their perspective, thereby halting the negotiations because they believe the other side is bluffing or being unreasonable. Attribution error occurs when one party attributes a negative or unfavorable personality trait to the other party. In a slip and fall case, referring to a plaintiff as “clumsy” or “not careful” instead of considering situational factors including how others would behave in the same situation can negatively affect dialogue.
The fewer barriers to communication there are in a dialogue, the greater likelihood that the parties will communicate effectively, understand each other, and work toward a mutually beneficial outcome.
Watch your nonverbal communication
Demeanor and nonverbal communication are important in mediation, just like in trial. Studies show that approximately 55 percent of communication is conveyed through body language, 38 percent of communication is conveyed through vocal qualities such as volume and pitch, and only 7 percent of communication is conveyed through the actual words spoken.
An advocate’s message in mediation can be compromised if poor or inconsistent nonverbal communication accompanies their message. The listener “sees” the message shown to them nonverbally by the speaker rather than the spoken communication they heard. Advocates communicating with poor nonverbal language also risk losing credibility with the other party.
Because communication is conveyed through posture, facial expressions, gestures, eye contact, tone, reflection, and even the speed of their speech, an advocate needs to assess their nonverbal communication skills. Videotaping can be helpful in such assessments. Since only 7% of communication is conveyed by actual spoken words, an advocate needs to match their body language and vocal qualities with their intended verbal message.
Be ready to deal with emotions at mediation
Emotions are displayed in mediation and if not dealt with properly, will impede the mediation. Anger is a common emotion that often masks more primary emotions such as frustration, fear or hurt. When a person becomes angry, a “flight” or “fight” survival instinct takes over. In such a state, effective communication is unlikely since it is difficult for an emotional person to think rationally and to listen to another. Advocates can avoid escalating emotions by using active listening and demonstrating empathy and compassion to the other party.
A mediator also helps address emotional issues in mediation. The mediator can tailor the mediation process and use reframing, normalizing, and face-saving techniques to facilitate effective communication with emotional participants.
Focus on the facts
Mediation advocates should focus on the facts in mediation and acknowledge both “good” and “bad” facts since it will enhance their credibility. Witness statements and depositions, photographs, reports, and other relevant documents can be useful facts in mediation. In an injury case, an advocate could summarize the medical treatment from the records instead of stating that the plaintiff is “not seriously injured.” One should avoid presenting expert opinions or inferences as facts.
Skilled advocates can use relevant facts to demonstrate that there is support for their perspective of the case and its strengths. Discussions on the applicable law, the risks and practicalities of continued litigation, and settlement options should cause the parties to reevaluate their case. Such productive conversations are necessary before any settlement can be negotiated.
Use your mediator and limit caucuses
Advocates should use the mediator to help them communicate more effectively in mediation. Some advocates rely solely on the mediator to communicate directly with their adversary after the opening session. The caucus model may be appropriate in mediations involving highly emotional or personally sensitive claims; however, participants often fail to consider other approaches.
Exclusive reliance on caucuses limits advocates’ direct communications with the other participants. An advocate only receives the verbal part of the party’s message as conveyed by the mediator. They must rely on the mediator’s interpretation and delivery of the participant’s nonverbal communication. Some advocates are not confident in their ability to effectively communicate directly to the other parties and may not appreciate the benefits of continued face-to-face dialogue.
An effective mediator can facilitate dialogue between participants by speaking with each side in caucus about how and what they will say directly to each other when they reconvene. If advocates have more direct communication with the mediation participants, they will see and hear both the verbal and nonverbal communication of the party. Such dialogue between advocates provides additional information and insight necessary for effective negotiations.
Lawyers need to recognize that mediation advocacy requires specific interpersonal conflict communication skills. Few lawyers have studied interpersonal conflict communication and its application to mediation advocacy. These skills can be acquired by reading articles and attending workshops on mediation advocacy and interpersonal conflict communication.
Mediation advocates need to be adept at talking with and listening to mediation participants. Courtroom techniques such as opening statements and final arguments to a jury are generally ineffective in mediation because they do not allow for the two-way dialogue necessary for an effective negotiation. Lawyers who use interpersonal conflict communication skills in mediation will be more effective mediation advocates.