Let’s face it. Most of us are not good listeners. As lawyers, we become adept at hearing what we need in a given situation, whether it’s some tidbit that will lead to additional discovery, a crack in what would appear to be a tough claim or defense, or the beginnings of an admission. But a mediator with good listening skills can be the difference between a successful and unsuccessful mediation.
As a mediator, you quickly learn that listening is much more important than talking. And what we are listening for is significantly different than what we listened for as an attorney.
A good mediator practices active listening.
Active listening is listening in which the speaker receives feedback. This feedback encourages further communication and reassures the speaker that they are being heard. Active listening helps mediation in multiple ways.
Encouraging a party to continue talking and sharing with the mediator accomplishes a number of important goals for a mediator.
It helps build rapport and trust with the mediator which can prove very valuable when the mediator’s role becomes more evaluative than facilitative. More importantly, it allows a party to share — to be heard. Litigation doesn’t offer that opportunity. Whether an aggrieved pause in a divorce case or a grieving spouse in a wrongful death action, people want and need to be heard. Lawyers and mediators who regularly handle these traumatic and trying cases sometimes become numb to the emotion. They have to in order to effectively deal with such weighty and emotionally draining cases day in and day out. But these parties need to be heard. And allowing them to vent can remove an obstacle to settlement.
Active listening also enables a mediator to learn a party’s underlying interests which may reveal an opportunity for a creative settlement that is well beyond what anyone, even that party, may appreciate.
We all know that a case is rarely about what is legally relevant or even legally possible in court. These tidbits are fertile ground for settlement options which a mediator may suggest later in a brainstorming session.