JAMS ADR Blog by Chris Poole
Today’s post explores the role of body language in virtual or remote mediations, where mediators see participants in a box and on a screen as opposed to in a chair and in person.
Understanding how mediators gather relevant information just by looking at people’s facial expressions and reactions can help you become a more effective advocate and participant in virtual mediations. Below, I explain why it’s crucial to be aware of your own body language, enabling you to make smart decisions that can boost your credibility, likability and persuasiveness with the mediator, as well as your clients, colleagues and adversaries.
For a refresher on how I conduct research and present my findings, see last month’s post: “Zeroing In on Zoom: What Good Mediators Really Think About It.”
Since JAMS began using virtual platforms exclusively in mid-March, the Master Mediators have settled hundreds of legal disputes. Importantly, they have mediated an extremely broad range of legal disputes, from personal injury to sexual harassment to complex commercial matters.
So, my findings and prescriptive thoughts relate to virtually any type of mediation.
As a reminder, in each post I share my interview questions and, using boxing terminology, provide a summation for the collective answers:
- Unanimous Decision
- Split Decision (winner by majority)
- Draw (no clear winner)
In last month’s post, the Master Mediators weighed in on mediating using virtual platforms. While they expressed a Unanimous preference for in-person mediations, they all recognized that, increasingly and by continued necessity, virtual mediation offers an unexpectedly effective alternative with upsides, including no travel time or related costs. They agree that virtual mediations are becoming easier and more natural.
Interestingly, two Master Mediators felt that virtual mediations can often be more enjoyable and more efficient than in-person mediations. Participants appearing from home feel more relaxed and, consequently, may be more transparent about what they really need to settle.
In sum, based on the collective view of the six Master Mediators — as well interviews with lawyers who have mediated virtually and my own experience conducting virtual mediations — virtual mediation works and, is here to stay.
With this in mind, I will now explore new issues particular to remote processes.
Is “Upper-Body Language” Harder to Read in Virtual Mediations?
NO -- (Virtually) Unanimous Decision
Why Body Language Matters
As Charles Craver, a leading expert on the role of body language in negotiation, writes in Effective Legal Negotiation and Settlement: “Nonverbal communication . . . constitutes a majority of the communication conveyed in a negotiation.”
To be blunt, body language matters.
And it really matters to the Master Mediators as they try to assess the credibility of plaintiffs and defendants who, if the dispute doesn’t settle, will likely be witnesses in an adjudicative proceeding. Effective mediators also assess the truthfulness and credibility of negotiators. For example, when a negotiator stakes out an extreme position or declares a bottom line, the mediator must determine in real time if they really mean it. And body language can help.
The Master Mediators also read body language to understand people’s feelings, such as anger or disappointment, in order to acknowledge those feelings and build rapport. Feelings play a role in every mediation, whether the dispute involves allegations of sexual harassment, former partners working through a partnership dissolution, or a straight commercial dispute where people simply feel cheated or wronged.
Good mediators show clients that they are listening closely, with curiosity and compassion.
Master Mediators Pay Close Attention to the Whole Person
While a few Master Mediators said that inconsistent statements and oral evasiveness matter more to them when assessing truthfulness and credibility, they all agreed that reading a person’s body language can help a lot.
And they didn’t pretend to know how they read body language so effectively, with one Master Mediator exclaiming “I can’t articulate how I do it. I just can!”
Their extraordinary skills are likely innate, developed through years of mediation experience. Intriguingly, several Master Mediators speculated that they honed their people-reading skills as children when they navigated complicated family dynamics, such as an overbearing or controlling parent.
Your Face Is Your Canvas -- Paint It Wisely
The Master Mediators agreed that while seeing a person’s entire body and observing gestures and body positions often reveal useful information about feelings or state of mind, seeing a person’s face matters most. And when only a few faces are on the screen, mediators can see expressions and micro-expressions more easily and more accurately than they can in person because everything is magnified.
As one Master Mediator put it, “Eyes and mouths are most important. I see emotions on their faces, even when they try to disguise or hide them.” Another bluntly asserted, “I get as many clues from the neck up as from the whole body.”
One Master Mediator told the story of an inexperienced lawyer who rolled her eyes and grimaced whenever she heard something she disagreed with or didn’t believe, perhaps lulled into complacency given the relative informality of a virtual mediation compared to court. So, the Master Mediator took her aside to explain that eye-rolls show contempt and can alienate the person who is speaking, often making them less likely to want to share information or collaborate. The young lawyer promptly stopped the eye-rolling.
Effective negotiators and advocates control what they say and how they act, balancing being firm and being likable. Despite experiencing strong negative feelings, they maintain their composure and calmly listen while they control natural urges to interrupt, challenge assertions or launch personal attacks.
If you want an adversary to listen to your point of view, it’s best to lead by example by listening to their point of view. The same advice applies to how to interact with the mediator, with whom you want to build a positive, trusting and collaborative working relationship.
In my next post, titled “Polo Shirts and Waterfalls: What to Wear and How to Appear on Virtual Mediations,” I’ll tackle practical issues such as “Strategic Implications of Your Clothing Choices,” “The Ins and Outs and Pros and Cons of Using Virtual Backgrounds,” and more.
David S. Ross, Esq. is a mediator with JAMS, where he has worked as a neutral for nearly 30 years. He has successfully resolved thousands of complex two-party and multi-party cases -- including multiple class actions -- and regularly handles high profile cases involving celebrities, politicians and CEO’s of large corporations. Mr. Ross focuses on discrimination and sexual harassment disputes as well as a wide array of business-related cases including breach of contract, defamation, partnership dissolution, tortious interference, legal malpractice and fraud. His mediation career has been featured in The New York Law Journal and The National Law Journal. He teaches Basic and Advanced negotiation courses at Columbia University Law School and he recently completed The Negotiation Master Class at Harvard Law School (2018).