The Significance of Nonverbal Communication in Mediation and Arbitration

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.

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.

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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.