Listening Skills In Mediation
"One of the most sincere forms of respect is actually listening to what another has to say." --Bryant H. McGill.
I came across this joke in one of the mediation websites that I was browsing through: In a matrimonial mediation, the exasperated husband threw up his hands in despair and told the mediator "Look, I am willing to give her everything – 1 million dollars, my penthouse, my Bentley. What more does she want?" The mediator turned to the wife and she quietly said, "I want him to listen to me the way you do". Though this is classified as a joke, the issue it highlights is a very serious one – listening and its impact on relationships.
The cathartic effect that listening has can never be understated. My wife used to work for a suicide help organization where the volunteers would simply listen to people feeling depressed or suicidal. The ability to express their deepest feelings, fears and emotions in a safe, non-judging space, would help many to overcome their emotional crises.
But listening is a very difficult skill to master. In mediation, it is not just enough to listen but to listen actively. So, what is this active listening? Go back to the last conversation that you had with anyone – may be your spouse, your partner or even your kid. Try and recall what the speaker said to you. How much of it are you able to recollect? And then try to remember what you were doing when the other person was speaking to you? Were you paying attention to what was being said? Or were you forming an opinion about what was being said or preparing your response to it? Or, were you even listening, or, was your mind wandering off into other thoughts?
"Most people do not listen with the intent to understand; they listen with the intent to reply." --Stephen R. Covey
The majority of us do not listen to understand. We listen to answer; we are forming opinions about what is being said – in other words, judging either the speaker or the issue that is being spoken about; we are formulating our response to what is being said and are eager to let the speaker know what we feel about it; or our mind is distracted by other thoughts – "I am running late", "did I switch off the microwave?", "Oh no, I forgot to buy the phone charger my wife wanted". Myriad thoughts are flashing through the mind. Sometimes it is even resentment towards the speaker that he/she is taking up your time.
"Listening" and "hearing"
It is important to understand that there is a difference between "listening" and "hearing". You "hear" a sound – the tweeting or chirping of the birds or the sound of the stream flowing through the field or the honking of a car behind you. We say that the court is "hearing" a case. It means that the court is hearing the facts of the case. "Listening" goes beyond hearing. You listen to a voice, because the voice conveys something beyond mere facts or data. The voice conveys feelings. When you listen to a song, you are not simply hearing the music, but you are listening to the feelings that the singer is seeking to convey. So, listening is far more deeper and more profound than hearing.
Importance of Listening in mediation
Why is listening so important in mediation? For this we need to understand how mediation is so different from other forms of conflict resolution. While other forms focus on resolving disputes, mediation focuses on resolving the deeper conflict of which the dispute at hand may only be a small manifestation. Mediation does not simply provide procedural and substantive satisfaction to the parties (as may be the case with litigation or arbitration), but also emotional satisfaction (which is never the case in litigation or arbitration- at least not for both the parties). That is why mediated settlements have a far more lasting effect as the parties feel bound to their undertakings by the sheer power of their emotional commitment to the agreement. The parties feel vindicated and satisfied that they have been not just been heard but also understood.
To be a good mediator, it is a sine qua non to be a good listener. As pointed out earlier, this is easier said than done. A mediator needs to develop the skill of listening actively, which in other words can also mean listening with empathy. From the body language to the verbal responses, the mediator has to consciously show the speaker that she is interested in what the speaker is speaking about and wants to understand how the speaker feels about it. The body language of the mediator should be open and relaxed with proper eye contact, nodding of the head and smiling appropriately. The verbal responses in the form of extenders such as "uh", "uh huh", "I see" and open-ended questions such as "can you clarify this?", "can you help me to understand this better?", "can you tell me how you feel about this?" show the speaker that the mediator is listening with interest and wants to know more. Appropriate paraphrasing and summarising of the speaker's statements helps the speaker to see that the mediator is not only keenly listening but also understanding the issue in a proper perspective. Most important outcome of active listening is that the mediator is demonstrating empathy towards, and understanding the feelings of, the speaker.
In a mediation, the mediator may listen to the parties in joint sessions (where both parties are present) or in private sessions (with each party individually). The listening skills of the mediator play a huge role in clarifying perspectives of each other to the parties in a joint session. By laying down the ground rules of uninterrupted listening and speaking respectfully, the mediator creates a safe environment for the parties to express themselves. Usually, in conflict, it is seen that the first casualty is communication. The parties stop communicating with each other, or, the little communication that does take place is either very toxic or through the medium of third parties who may distort the information due to lack of listening skills. The joint session thus becomes a safe medium for the parties to listen to each other (in which the mediator becomes a role model through an effective demonstration of active listening) and to look at the issues from the other person's perspective. With all the paraphrasing, neutral reframing, clarifying and summarising that goes on from the mediator's end, the parties attain substantial clarity in understanding each other's perspectives and identifying the real underlying issues that concern them, instead of the positions that they would have taken due to lack of proper communication and consequential distortion of data.
Thus, listening is an indispensable skill in a mediator's toolbox. That is why a large part of the training of a mediator is focused on developing these listening skills. One can safely say that listening is a life skill. It not only helps one to be a good mediator but also a better human being.
A.J. Jawad is a mediator and trainer based in Chennai. He is one of the founder-trustees of the Foundation for Comprehensive Dispute Resolution (FCDR) based in Chennai and international faculty for India on the panel of ADR ODR International UK. He is also a mediator-trainer on the panel of the Mediation and Conciliation Project Committee of the Supreme Court of India.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]