An Alternative to Litigation – Mediation and the Impact of Non-Verbal Communication

Notably there are those who espouse the point of view that when litigants are not able to access the justice system in a timely manner, they have in effect been denied justice.  One of the cornerstones of Western democratic societies has been the public’s – the citizenry’s access to justice regardless of their socioeconomic status, their educational status or their political point of view.  From an ethical perspective, individuals being able to reasonably participate in the legislative system is a hallmark of democracy.  Due to the rapid rise in the volume of legal proceedings registered in the justice system, in North America, specifically in Canada, people’s access to timely litigation has been impeded.  A viable alternative to litigation – Alternate Dispute Resolution – Mediation – has facilitated resolution to peoples’ conflicts in a timely manner.  Mediation has experienced steady growth both face-to-face and in an online format.     As members of a respected profession, it behooves mediators to become proficient in utilizing all applicable tools to enhance their professional success and stature. Mediation consists of disputing parties convening voluntarily with a neutral third party, a mediator enabling the session.  

Objective

This paper will discuss why it is essential for those entering the field of mediation as well as those who currently practice mediation to become familiar with the concepts of nonverbal communication and its impact on the mediation process.  

Overview of Nonverbal Communication and Mediation

The immeasurable contribution of nonverbal communication to human interactions was recognized and formally studied as early as 1872 with Charles Darwin’s seminal work Expressions of the Emotions in Man and Animals (Yammiyavar, Clemmensen & Kumar, 2008).  The impact of nonverbal communication, which can be described as “all stimuli except meaningful words…generated for purposes of communication….” is more influential than may have been previously recognized Yammiyavar, Clemmensen & Kumar, 2008 p.33).  Nonverbal communication ultimately affects peoples’ judgments, perceptions and actions when interacting with one another. Not only do peoples’ upbringing, place of origin and cultural background affect their understanding of nonverbal communication patterns but additionally gender also plays a noteworthy role in nonverbal behaviors and interpretation (Aguinis & Henle, 2001)   

 For mediators who daily convene mediation sessions with parties, who are unfamiliar with them, it is essential to make a positive first impression.  A mediator’s initial positive connection with the participants enriches the discussions and hoped for outcomes of the mediation process. The manner in which a mediator initially interacts with the participants may directly affect the latter’s attitudes towards the entire mediation process. One should acknowledge that first impressions, taking into account nonverbal communication, are significant since one should take into account that “Research has shown…that people make relatively quick judgments of others on the basis of their nonverbal behavior…” (Albright, Kenny, & Malloy, 1988).      

Mediation and Trust

Mediation has been described as a process involving parties who have voluntarily consented to meeting in an agreed upon location with the inclusion of a mediator acting as a third party, neutral. An accomplished and skilled mediator that an important factor in his/her responsiveness to the parties’ needs is alertness to nonverbal communication manifestations. The mediator’s sensitivity to nonverbal cues and nuances might enhance the participants’ respect for and confidence in the mediator which might be the critical factor in advancing the mediation session(s) towards a productive resolution.   If the participants are sufficiently at ease during mediation there is an increased likelihood that they will unburden themselves of their private thoughts and interests which will enhance the mediator’s ability to facilitate the session’s productive discussions.  Sam Imperati (n.d.) wisely explains that “Mediation is a science and an art. Although many mediation skills may be taught, the development of a skilled mediator requires experience in dealing with people in all conditions and under all circumstances…”.   

Categories of Nonverbal Communication

Communication can be described as a method of “conveying information through signals…” from a sender to a receiver (Mandal, 2014, p.417).  Communication typically consists of a verbal component and a nonverbal component. As stated, it is customary in Westernized society, to unquestionably accept that speech is the key variable in establishing a harmonious and trusting relationship.  It is advisable for us to reiterate an acknowledgement that “non-verbal communication plays a much larger part in how we communicate and trained mediators need to pay much more attention to the non-verbal cues of the disputing parties…” (Tolentino, 2011, p.1).  Ebner and Thompson (2014) unequivocally concur with Tolentino (2011) asserting that “Studies show the critical role nonverbal communication plays in creating trust between individuals…”.  According to Feldman (1991) nonverbal communication is essential in order to have a meaningful and successful dealings with others.  Successful interactions are the building blocks of productive mediation sessions.

The science of nonverbal communication is an expansive subject to explore.  Harrison described nonverbal communication as “everything from facial expression and gesture to fashion…territoriality…” (1973, p.72).  Argyle included “bodily contact, posture, physical appearance, and direction of gaze…” as elements of nonverbal communication (1969, p.13).  This paper will primarily focus on three aspects of nonverbal communication – kinesics, haptics and proxemics.  

To form a supportive, harmonious and a trusting environment needed for effective mediation, mediators should be attune to those nonverbal cues or nonverbal communication characteristics which will promote the parties’ acquiring trust in the mediator.  

Kinesics is the study of the types of bodily movements such as hand, arm, body and face actions.  Haptic refers to the study of the effect of touch in human interactions. “Proxemics refers to the study of how space and distance influence communication…” (Hans & Hans, 2015, p.49).  From a mediator’s viewpoint each of the aforementioned specific areas of nonverbal communication is directly applicable to overseeing and engaging in productive mediation sessions.  

Waiflein  explains that “Research has indicated that societies which have lower rates of vocalization do not demonstrate a lack of communication, instead they rely more heavy on gestures and facial expressions…” (2013, p.6).   

Kinesics

An effective mediator is alert to kinesics which is the awareness of the importance of   the initial face-to-face contact between parties and the mediator  which provides the first opportunity to evaluate one another and commence the trust-building process. The mediator’ should ideally engage in direct eye contact with the participant(s) for the ‘appropriate’ length of time displaying respect and professionalism inspiring trust.   

In the field of kinesics, facial expressions assume a prominent role.  Lunenburg explains that “Facial expressions convey a wealth of information…” (2010, p.2). A mediator should, from the moment of initial contact, maintain a clear-eyed, non-judgmental facial expression. The mediator’s sustained eye contact with the parties also demonstrates “interest and attention…”   (Lunenburg, 2010, p.2).    

Haptics

Haptics refers to touching during interactions.  A Mediator’s intent in offering his/her hand to shake may be extended as a sign of welcome, however, for some cultures, touching especially between males and females is frowned upon.  Mediators should be alert to cultural signals which may restrict touch between parties and the mediator.   Similarly, a mediator’s empathetic touch may be misconstrued as “threatening…” so again, these movements should be judiciously considered before acted upon.    

Proxemics

Proxemics is the nonverbal communication techniques associated with concerns related to appropriate space between individuals.  A Mediator should always be conscious of maintaining respectful distances between the mediator and the parties.  Hans and Hans explain that the concept of personal space is related to the notion of territoriality which “is an innate drive to take up and defend spaces…” (2015, p.50). When one intrudes on or invades another’s personal space the action may be interpreted as hostility or aggression.  For a mediator, focusing on discreet aspects of social norms, which are culturally and geographically specific, when interacting with disputants will directly impact the rapport he/she is able to develop during the mediation session.   

Personal space or distances between people can, in general, be subdivided into public, social-personal and intimate space, each with an associated dimension.  For the purposes of mediation, it would be sensible to maintain the social space distance, approximately four to twelve feet, eliminating the possibility of the mediator entering into parties’ personal space (Hans & Hans, 2015, p.49).  As mediators we should be keenly aware of the intrusion on participants’ comfort and safe zone if we enter into their personal space.     

As a mediator, one is continually focused on conserving the positive energy, the harmony during the mediation session which contributes to participants’ ease heightening the likelihood of productive dialogue and ultimately attaining a mutually acceptable resolution. One’s perception of potential physical vulnerability resulting from intrusion into one’s personal space will clearly contribute to an escalation of fear and anxiety.  Respectful distance between the mediator and the parties sends reassuring nonverbal messages to the participants which “reveal information about …personality, intentions, and attitudes…” about the mediator which in turn promotes a trusting environment (Ambady, Bernieri, & Richeson, 2000     

How people interpret others nonverbal communication mannerisms is directly related to their own cultural upbringing.  As de Gelder astutely states “It is a truism that cultural stereotypes often shape the mind during the course of an individual’s development and socialization…” (2016, p.5). It can be suggested that nonverbal behavior or communication is variable dependent upon cultural background (Lomranz, 1976, p.21, Floyd, 2006). Hans and Hans explain that nonverbal communication is a process that is acquired by children from their earliest years through observation and adoption of practices to which they are exposed in their environment.  They point out that nonverbal communication is “passed on to you by your parents and others with whom you associate…” (Hans & Hans, 2015, p.51).   Mediators should always be mindful of “Gestures seen as positive in one culture may be seen as obscene in another culture…” (Hans & Hans, 2015, p.51).   

The importance of mediators’ familiarity with other cultures interpretations and manifestations of nonverbal communication is a useful tool in perfecting his/her interactions with the mediation’s participants.  Disputants perceiving the mediator’s respect for their culture are more apt to develop trust in the mediator which in turn promotes the mediation process’ success.  As a cautionary note, mediators should realistically accept that regardless of the deference and attentiveness that mediators extend to other cultures, there will no doubt be instances where the mediator’s actions will be misinterpreted negatively by disputants.  It is advisable for mediators to assume a courteous, modest and respectful approach to all mediation participants. A skilled mediator will rely on his/her professional expertise to evaluate each mediation’s participants and then proceed with the appropriate approach for each mediation session.