As a mediator and arbitrator for the last 10 years, I’ve seen my share of communication disconnects, especially in emotionally charged disputes. As someone with a Ph.D. in communications, I understand that the root of these problems is often ineffective listening.
To avoid breakdowns in communication that can derail settlements, I strongly encourage lawyers and parties participating in a mediation to practice “empathetic listening.” This involves paraphrasing the message that you believe the other person is trying to send. The idea behind it is to focus on the meaning of what is said, and not hear the words. If done right, it allows the listener and sender of the message to feel they have had an effective dialogue and that they understand each other. In my experience, empathetic listening by parties and counsel can help bring a dispute to a successful resolution.
Unfortunately, many view the idea of listening as simply waiting for the other person to stop talking. Additionally, there are significant barriers that can prevent effective listening such as cultural differences between the parties or a listener who is upset.
I frequently see the latter in employment disputes involving allegations of sexual harassment, wrongful termination and failure to accommodate. I also encounter barriers to listening in emotional disputes over trusts and estates, which often pit a widow against a decedent’s children from another marriage. In these types of cases, with so much at stake for the parties personally, emotions run hot, which can prevent effective communication. In in those cases that empathetic listening is often most valuable.
In addition to employing empathetic listening during a mediation, lawyers and parties should also be on the lookout for non-verbal cues from their adversaries so they can fully evaluate what is being communicated to them, as well as fully evaluate the effectiveness of their own communication.
For instance, if someone crosses their arms in a mediation, it may mean that they have chosen to block the message being sent or are defensive about it. That may require the messenger to rephrase what they want to say to make the listener more open to hearing the message.
When it comes to empathetic listening and looking for nonverbal clues, I practice what I preach. In mediation sessions, I often privately meet with just the attorneys to clarify legal or factual issues. I also frequently have to confront communication breakdowns between parties and between parties and their counsel. In those situations, I always seek to resolve the disputes before they escalate. The most effective tool is at my disposal? Empathetic listening.
Joan B. Kessler, Esq., Ph.D. is a JAMS neutral based in Los Angeles. 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.
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