The Role Of Communication In Mediation
Whether it’s written or oral, communication is the legal profession equivalent of blocking & tackling — and it comes naturally to most attorneys. I suspect most of us would grade ourselves pretty highly on our communication skills.
That said, I have to wonder if we’re intentional enough about what we communicate, and the messages we send throughout the day.
Client Behavior In A Courtroom
When I was an active litigator myself, I always told my clients that, during trial, they needed to be careful to watch what they did, who they talked to, and what they said. I made sure they understood that, whenever they were in the courtroom, they were on stage — even when they weren’t testifying. Jurors could be watching them any time — observing their behavior, gauging their interest in the proceedings, and trying to figure out if they were likable, believable and trustworthy.
In other words, client behavior is a powerful communicator of messages to a jury during trial.
The Same Is True In Mediation
I recently conducted a mediation between two Korean parties. Most of the day was spent speaking through a translator. It was awkward and difficult. I found that I needed to pay more attention to what I was communicating. I also found that I chose my words more carefully, and paid more attention to my facial expressions.
It was a powerful learning experience for me personally. It also got me thinking about other lawyers I’ve observed, over the years, who weren’t as apparently conscious of what their own nonverbal cues and messages were communicating.
Don’t Tip Your Hand
In a mediation, as in a jury trial, every participant’s move is scrutinized. Messages sent through the mediator in a caucus, or delivered by an attorney in a joint session, are all noted and analyzed by the parties. Everyone’s looking for hidden messages they can glean from nonverbal communications. Poker players often call messages like that “The Tell” — behavior indicating what’s in another player’s hand.
All of this communication can be used by an attorney to his/her advantage in the negotiation process. Acting on The Tells they get from the other side’s messages, attorneys & clients to encourage, discourage, motivate, demotivate, excite or anger their opponents.
And Don’t Misinterpret
One of my roles as a mediator is to coach parties to send clear messages, and to make sure lawyers and clients don’t misinterpret messages communicated (intentionally or inadvertently) by the other parties. I spend a great deal of time discussing this with my clients — making sure that the messages they’re sending are the ones they want to send.
Attitudes Are Contagious
I’m always careful about what I communicate in mediations. I always try to be the positive individual in the room. I want the parties to see that I’m optimistic and confident about our chances of settlement — because optimism and confidence are every bit as contagious as negativity. On the other hand, it’s also my job to communicate to my clients when I sense the opportunity for settlement is slipping away.
Although a good mediator should strive to keep the tension level in a mediation low enough that everyone maintains their best professional decorum (and their best poker faces), it’s important to remember to be always intentional about what we want to communicate in the room. After all, people are literally “hanging on our every word.”
For further reading on mediation, please see William’s blog Mediation Insights.