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RIGHT BRAIN APPEALS

Active listening techniques

It is not enough that a party be permitted an opportunity to vent. He/she must come to feel that he/she has been heard and understood.

One way some mediators satisfy this need is by taking copious notes of the plaintiff’s comments regarding his/her emotional distress in the joint session, and then restating them back to the plaintiff in the presence of the other parties and counsel (frequently in a much more eloquent manner).

A benefit of this approach is that it can operate to create a strong bond between the mediator and plaintiff.

However, there are also several problems with the approach.

First, it is time consuming, and can result in the loss of other elements of the mediation process that are of importance to the parties.

Second, it may imply that the plaintiff did a poor job of explaining his/her emotional distress and needed the help of the mediator to do so adequately.

Third, where the plaintiff is resisting the advice of his/her attorney to settle, the mediator’s restatement of the plaintiff’s explanation of his/her emotional distress can exacerbate the problem. This is because the plaintiff is likely to take the mediator’s restatement as a validation of his/her views regarding the seriousness of his/her emotional distress.

As such, other mediators use eye contact, facial expressions, body language and pertinent comments to communicate to the speaker that he/she is being heard and understood. These approaches can be further enhanced by using them in conjunction with a type of “delayed feedback.”

For instance, the mediator may demonstrate that he/she heard and understood the points made by the plaintiff’s attorney by subsequently confirming that he/she made them to defense counsel in fulfilling his/her role as a “devil’s advocate” in caucus with the defense group. The mediator may then provide the defense attorney’s responses to those points.

Such an approach not only satisfies the need of the plaintiff’s attorney for assurance that he/she was heard, it advances the dialogue regarding the merits of the case. Moreover, it fulfills these functions without wasting time.

In cases in which the parties desire to carry forward with an employment relationship, active listening techniques are sometimes used to bring them the sense that they are not only being heard and understood by the mediator, but by the other party as well.

This procedure involves sitting the parties across from one another, and allowing each party to speak without interruption. Before the listening party may respond or state his/her position, he/she must restate what he/she has just heard. When the other party confirms that he/she correctly paraphrased the statement, he/she is permitted to proceed with his/her own statement, and the roles are reversed.

This approach does not guarantee that the parties will come to agreement. It does, however, satisfy their need to feel that they are being heard and understood.

The mediator’s role is primarily that of a referee who assures that the parties are observing the rules of the procedure.

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