There is a continuous demand for mediation as a forum for settling domestic and international disputes. In America, a study of 449 cases revealed that mediation could resolve 78 percent of cases, regardless of whether parties had been compelled to mediate by a court or had voluntarily chosen it. Internationally, the increase is partly attributed to the adaptation of the United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) (the “Singapore Convention on Mediation”) on December 20th, 2018. By the time of writing this article, it had been signed by 55 countries.
According to the Singapore Convention on Mediation, Mediation is a process by which parties attempt to amicably settle their dispute with the assistance of a neutral third person (“the mediator”) who does not have the power or authority to impose a solution upon the disputing parties. Mediation is attractive because of its unique principles, such as (1) it’s informal. There is no strict procedure mediators ought to follow when conducting mediation. Most mediators use evaluative and facilitative techniques. They apply it narrowly or broadly depending on the mediator’s style, the nature of the disputes, and the wishes and interests of the parties.. These techniques are known as the “Riskin’s Grid; (2) it’s voluntary. As such, parties can end mediation when they feel it’s not working for them, with or without reason. Mediators do not have the authority to force them to continue or demand justification for ending it; (3) Without prejudice, it’s confidential. Anything said, or information obtained during mediation can not be shared or produced as evidence in courts during the trial of the same mediated dispute. Parties can not call mediator(s) to testify as witnesses in court on matters they meditated. Lastly, It’s not binding unless the term of the mediated settlement has been reduced in writing, signed by both parties and the mediator who mediated it..
The most effective tool for successful mediation is effective communication. Communication means understanding and sharing meanings . The mediator can persuade disputants to settle using active communication skills. Failure thereof can frustrate the possibility of reaching an amicable settlement. For communication to be persuasive, it must have all these three elements. First, logos, i.e., the logic and the reasons for the argument. Second is ethos, i.e., character, ethics, and believability. Lastly, pathos, i.e., the emotional content of your presentation.
- FORMS OF COMMUNICATION AND ITS IMPLICATIONS
The three forms of communication are verbal, nonverbal, and para-verbal. Verbal communication is conveyed using language or words, including oral and written words. On the other hand, nonverbal communication occurs through means other than words, such as body language and gestures.Para verbal communication is conveyed by taking account of the tone, pitch, and voice speed of the person delivering the messages. In mediation, nonverbal communication constitutes 55%, para-verbal communication accounts for 38%, and verbal communication is used only 7%.
A study by Kate Ellis, titled Nonverbal Presentation in a Mediation Session, revealed that 93% of communication used in mediation is nonverbal and para-verbal. For this article, these two types of communication shall be grouped as nonverbal. Factors influencing their use include religion, personality, age, gender differences, and culture. Culture means a shared system of socially transmitted behavior that describes, defines, and guides people’s way of life and communication from one generation to the next. There are two categories of culture. First is social culture. It harbors values that unconsciously and implicitly engender tendencies to prefer certain states of affairs over others. The second one is organizational culture. It Inhabits more visible and conscious practices in how people perceive what goes on in their established environment.
Cultural values vary from one culture to another. Examples of these differences include low-context cultural values and high-context cultural values. They value change and are future-oriented. Those from low-context cultural values communicate explicitly with heavy reliance on verbal communication and would do so directly, even on a sensitive topic. Example of low-context countries is the U.S., Canada, and most North and Western European Countries.
Not only does nonverbal communication constitute the most significant percentage of communication in mediation, but all forms of communication include both nonverbal and para-verbal elements. On the other hand, those from high-context cultures communicate indirectly and rely more on nonverbal communication. They avoid discussing sensitive matters and place strong values on tradition. For instance, most Asian and African Countries, including my birth country of Uganda, practice high-context cultural values.
Yet, mediation trainers pay minimal attention to them while training mediators. Limited studies or scholarly articles are published about them, and mediators and parties in mediation mostly ignore them. But keen attention must be paid to them, considering their crucial role in creating a friendly and conducive environment that makes building rapport possible. It also allows parties to share their stories that would otherwise not be shared..
- ADVANTAGE OF PAYING ATTENTION TO NONVERBAL SIGNALS AND CUES
Observing nonverbal cues and element sends signals crucial to understanding contexts and meanings behind what has been said or perceived the others’ feelings.
It helps in coordinating interaction. According to Jeff, Ph.D., Nonverbal acts involving “attending” behaviors are essential in coordinated interaction. Attending to behaviors can be by eye contact and adjusting body positioning. Also through nonverbal encouragers and discouragers.
Observing nonverbal and para-verbal cues and elements can be more revealing than verbal communication regarding genuine thoughts and feelings.
Furthermore, verbal messages are better perceived when nonverbal language further emphasizes
them. And when there is a conflict between what is said and how it’s said, people believe what they see, not what they hear.
Lastly, nonverbal cues are pre-eminent in deciding whether someone is trustworthy, credible, or likable.
- FORM OF NONVERBAL COMMUNICATION
In his thesis, titled Hostage & Crisis Negotiators: Nonverbal Communication Basic, Mr. Thompson, Ph.D., developed METTA (Movement, Environment, Touch, Tone, and Appearance), an acronym for understanding nonverbal communication. He argued breaking down nonverbal elements into this acronym helps to raise awareness of each and makes the nonverbal environment more visible and salient. That it also helps avoid cognitive overload and allows mediators to be aware of their nonverbal communication and that of the parties. Furthermore, it increases the mediator’s skills in accessing and utilizing nonverbal communication and effectiveness in achieving their goals..
It connotes elements of body language. Their meanings and interpretation vary depending on cultures, religions, and personalities. When dealing with those from western countries, mediators should know that keeping eye contact is a primary contributor to building rapport and creating perceptions of competence and expertise. The lack thereof is associated with lying and evasion. In Africa, however, eye contact could be perceived as intimidation, unapproachable, and disrespectful.
The body orientation and pose are other examples of movement. It connotes the direction in which participants in mediation direct themselves. The mediator should be aware of his body direction. Ensure compliance with the mediator’s ethical duty to be impartial and fair to all disputing parties. He should not sit directly facing a party. It impacts the sensation of rapport, trust, and empathy.
For this article, the gesture is the last relevant element of movement. It takes two forms. First is emblems,i.e., they replace verbal commands, e.g., wagging fingers, to demonstrate a point. Botanic gestures are another element. It’s used to emphasize a point. E.g., using fingers to count priorities.
In terms of face-to-face mediation, room design matters. Seating arrangement and uniformity of seat matters. For online mediation, background noises and commotions matter also. They affect the emotions, behaviors, and interpretations of those involved in mediation. As such, mediators ought to set an equal distance between seats and use identical or similar chairs to avoid the risk of interpreting different chairs as mediators treating other participants as inferior or biased, which could diminish the effort to build rapport or escalate toxic and offensive tension in mediation.
Another aspect of the environment relates to the availability of food. Most large mediation facilities have snacks and coffee for parties to serve themselves. It’s crucial because hunger has the great potential of increasing anger, making them more aggressive due to fluctuation in serotonin levels or resulting in situational discomfort and anxiety. Eating jointly not also reduces rage and despair, but having a meal together is very powerful in creating a collaboration for mutual gain.
There are several forms of touch. For purposes of this article, it’s limited to handshake. Mediators are encouraged to shake hands at least at the start of the mediation. But should he choose to do so, it must be firm and shake everyone’s hands. A firm handshake increases cooperation and shows confidence in the mediator’s expertise and competencies in resolving parties’ disputes. Any leakage in a handshake at the beginning of mediation affects the mediator’s first impression and how parties will judge him throughout the mediation process.
Mediators extending a handshake must know that comfort zone and preferences over it vary from person to person—cultural norms, gender differences, and religion compound this difference. For example, in Islam, it’s prohibited to physically contact a person of the opposite sex other than your mother, sisters, and other relatives you can not marry.
- Tone, e.g., firmness or pitches in voice
The tone is an element of para-verbal language, which constitutes nonverbal communication, with the potential to support or discredit the genuineness of the information being communicated. It also has the potential to reveal the current emotional state of the speaker. To the receiver of the message, the tone of a person speaking may indicate whether he is assertive, polite, or dominant. Mediators should be aware of how he says things and how parties also say things. For example, those with higher decibel levels are perceived to be more assertive
and aggressive than those with lower levels. Mediators should use nonsubstantive words, such as “umm.” Because it may demonstrate that the listener is following the conversation and may help build rapport and trust.
How one presents himself matters in determining the expression one makes and affects their influence on others. Appearance includes facial features and clothing. Mediators must dress appropriately, depending on the subjective circumstances. For example, in court-annexed mediators, the appropriate dress code is a business suit. Out of court, the proper dress code is the business casual outfit.
- INTERPRETATION OF NONVERBAL COMMUNICATION
A competent mediator should be aware of his nonverbal cues and understand the parties’ nonverbal cues and respond to them accordingly. To do that, they must engage in active listening skills, which makes it possible for them to: (1) gain more information, (2) improve their understanding of disputing parties’ viewpoints, (3) increase their ability to facilitate cooperation between disputing parties; (4) demonstrate empathy and builds rapport; (5) de-escalate tension and dissipate negative emotions..
Proper interpretation of nonverbal cues also helps the mediator avoid the risk of misinterpreting the meaning behind the nonverbal signal, stereotyping, or judging quickly. Correct interpretation also makes compliance with the principle of openness and tolerance of others’ perceptions possible. The proper interpretation technique that a mediator must use is a constructive approach. It considers nonverbal signals and their meaning as subjective but not universal.l. The proponent of constructive interpretation of nonverbal communication argued there is no universal meaning of nonverbal communication, rather individually specific. As such, they argued against the standardization of nonverbal’s meaning.
However, there is some exception to constructive approaches. Especially when interpreting lexicalized gestures. Those convey a specific inter-subjectively defined meaning, such as the v-sign for peace. But even gestures of this kind are not universal. In Uganda, for example, the v-sign can be interpreted as belonging to Forum for Democratic Change (“FDC”) political party. As such, a mediator must pay keen attention to the context behind those signs.
- METHOD FOR DEALING WITH BODY LANGUAGE
Just like the name suggests, it applies to selves. Body language expresses an inner attitude, such as thoughts, feelings, and mood. It’s a reaction to mental activities, consciously or unconsciously. Because of the strong relationship between body language and the state of mind, it’s possible to use body language to influence minds. This interaction between body and mind is crucial to support the mediator’s tolerant, open attitude and make it possible to overcome challenging situations. For example, we can reduce stress or inner tension by controlling our breath and relaxing our muscles.
- Observation and information collection
It requires mediators to pay close attention to parties’ behavior. In doing so, one must be aware body language is subjective. According to Wuestehube and Hunder, people associate different feelings with the same bodily expression. Therefore, mediators should refrain from imposing their interpretation on others and assume to know precisely how parties feel by observing their body language. The mediator can apply three methods when observing and collecting information. These include calibration, triad observation and interpretation, and checking that interpretation with parties..
Calibration involves memorizing a person’s body language. Over time, it’s possible to attach meaning to a person’s body language since people develop recognizable personal expressions in various situations. Through calibration, a mediator can ably recognize alterations in the body language that indicate a change in parties inner attitude. Particular mental activities and emotions trigger specific body signals known as physiologies.
Separating observation and interpretation makes disassociating selves from the situation. Triad observation and interpretation happen in two ways. First, by attentively observing nonverbal signals as comprehensively as possible. Secondly, by describing the behavior without interpreting it. Interpretation comes last and must be done using a constructive approach. Following triad observation methods helps the mediator become aware of and separate different steps of processing nonverbal cues, reduces subjective bias by dragging the process into the sphere of awareness, and protects the mediator from misinterpreting and irritating disputants.
Mediators should not presume their interpretation to be correct. They must check it with the sender of the nonverbal cues. They can effectively do it by asking open-ended questions, mirroring, and reframing. Their motivation must be a genuine interest in the feeling and not telling them how they feel. And should allow them to reflect on their thoughts and feelings.
Interaction involves the mediator adopting elements of the parties’ body language through pacing. It helps the mediator better connect with parties and creates a stress-free and open environment. Through the pacing technique, a mediator can mirror or mimic the body movent of the parties. The mediator can mimic consciously and unconsciously. Unconscious mimicry increases when we are oriented and feel concerned about others. If correctly done, it signals empathy, cooperation, and rapport..
About the Author
Francis Ojok, LLM., MA., LLB.
Francis Ojok is a Ugandan-trained lawyer with extensive experience in International Arbitration and Dispute Resolution (Negotiation and Mediation). He is an International Mediation Institute’s Qualified Mediator and a co-founder of Kuponya Peace & Justice Initiative, based in Uganda.
Francis holds a Master of Laws (LLM) in International Commercial Arbitration from Pepperdine University, Caruso School of Law’s, Straus Institute for Dispute Resolution. A Master of Arts (MA) in Conflict Resolution and Coexistence from Brandeis University’s Heller School for Social Policy and Management, and a Bachelor of Laws (LLB). from Kampala International University,Uganda.
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