One of my favorite expressions has always been “we have two ears and one mouth so that we can listen twice as much as we speak.” This adage may be nowhere more important than during a mediation. Ultimately, in a setting where all sides have come in good faith to seek a resolution of their dispute, the importance of listening and the psychological and physical elements of true listening are crucial to support the possible success of the mediation process.
The concept of listening comes with many elements. Certainly, one of those features is the focus and attention given to the party talking. Obviously, if one person is talking and the other side is interrupting or is distracted by extraneous factors (such as a smartphone), the person talking might believe their comments are not honestly being heard or considered. Without the trust that the party listening is paying attention to what is being said, the credibility of the conversation is weakened. This is one of the reasons why the effort to create eye contact between the speaker and the listener is important. Certainly, if the parties fail to establish any eye contact during their communication, the speaker might assume that the listener cannot be swayed, is bored or, possibly, that the listener is suffering some guilt or shame regarding the matter being discussed.
Just as true attention is important during a conversation, the clarity of the content of that conversation is equally salient. Although interruptions may not be appropriate during the conversation itself, it is critically important in the process of listening to make sure the message being conveyed is clear and understood by the party who is listening. The speaker should not assume that what they are saying is absolutely clear to the listener. Therefore, after the speaker is finished, time set aside for questions can be very helpful to the process. If the listener doesn’t understand statements that are made, it is not a demonstration of weakness to ask questions. In fact, such questions may actually be very helpful in clearing up issues for both sides.
Additionally, another part of listening or “hearing” the other side during a discussion of resolution is the need to maintain an open mind to the facts and law that relate to the dispute between the parties. Such openness in communication can create a connection between the parties, which may engender empathy toward the other side involved in a dispute. Any such affinity towards an adversary in a dispute may be a necessary element towards reaching a resolution.
Finally, every part of a conversation includes not only what the person says, but how they say it. The physical part of any conversation is a true validation of the person’s intent in what they are saying whether the words are said with open arms and a smile compared to crossed arms and closed eyes. To have effective communications the parties, notwithstanding their position in the dispute, must make a good faith effort to restrain from aggressive behavior or any demonstration of disregard for the comments that are being made. Even though an opposing party may disagree with what is being said, the willingness to listen, without interruption, and without physical barriers, may lead towards a connection that can bridge the gap in an existing dispute.
For over thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at Scott@wzlegal.com or 404-364-4626