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An Alternative to Litigation \u2013 Mediation and the Impact of Non-Verbal Communication<\/span><\/p>\n 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.\u00a0 One of the cornerstones of Western democratic societies has been the public\u2019s – the citizenry\u2019s access to justice regardless of their socioeconomic status, their educational status or their political point of view.\u00a0 From an ethical perspective, individuals being able to reasonably participate in the legislative system is a hallmark of democracy.\u00a0 Due to the rapid rise in the volume of legal proceedings registered in the justice system, in North America, specifically in Canada, people\u2019s access to timely litigation has been impeded.\u00a0 A viable alternative to litigation \u2013 Alternate Dispute Resolution \u2013 Mediation \u2013 has facilitated resolution to peoples\u2019 conflicts in a timely manner.\u00a0 Mediation has experienced steady growth both face-to-face and in an online format. \u00a0 \u00a0 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.\u00a0\u00a0<\/span><\/p>\n Objective<\/strong><\/p>\n 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.\u00a0\u00a0<\/span><\/p>\n Overview of Nonverbal Communication and Mediation<\/strong><\/p>\n The immeasurable contribution of nonverbal communication to human interactions was recognized and formally studied as early as 1872 with Charles Darwin\u2019s seminal work <\/span>Expressions of the Emotions in Man and Animals<\/span><\/i> (Yammiyavar, Clemmensen & Kumar, 2008).\u00a0 The impact of nonverbal communication, which can be described as \u201call stimuli except meaningful words\u2026generated for purposes of communication\u2026.\u201d is more influential than may have been previously recognized Yammiyavar, Clemmensen & Kumar, 2008 p.33).\u00a0 Nonverbal communication ultimately affects peoples\u2019 judgments, perceptions and actions when interacting with one another. Not only do peoples\u2019 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)\u00a0\u00a0\u00a0<\/span><\/p>\n \u00a0For mediators who daily convene mediation sessions with parties, who are unfamiliar with them, it is essential to make a positive first impression.\u00a0 A mediator\u2019s initial positive connection with the participants<\/span> 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\u2019s 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 \u201cResearch has shown\u2026that people make relatively quick judgments of others on the basis of their nonverbal behavior\u2026\u201d (Albright, Kenny, & Malloy, 1988).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n Mediation and Trust<\/strong><\/p>\n 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\u2019 needs is alertness to nonverbal communication manifestations. The mediator\u2019s sensitivity to nonverbal cues and nuances might enhance the participants\u2019 respect for and confidence in the mediator which might be the critical factor in advancing the mediation session(s) towards a productive resolution. \u00a0 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\u2019s ability to facilitate the session\u2019s productive discussions.\u00a0 Sam Imperati (n.d.) wisely explains that \u201cMediation 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\u2026\u201d.\u00a0\u00a0\u00a0<\/span><\/p>\n Categories of Nonverbal Communication<\/strong><\/p>\n Communication can be described as a method of \u201cconveying information through signals\u2026\u201d from a sender to a receiver (Mandal, 2014, p.417).\u00a0 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.\u00a0 It is advisable for us to reiterate an acknowledgement that \u201cnon-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\u2026\u201d (Tolentino, 2011, p.1).\u00a0 Ebner and Thompson (2014) unequivocally concur with Tolentino (2011) asserting that \u201cStudies show the critical role nonverbal communication plays in creating trust between individuals\u2026\u201d.\u00a0 According to Feldman (1991) nonverbal communication is essential in order to have a meaningful and successful dealings with others.\u00a0 Successful interactions are the building blocks of productive mediation sessions.<\/span><\/p>\n The science of nonverbal communication is an expansive subject to explore.\u00a0 Harrison described nonverbal communication as \u201ceverything from facial expression and gesture to fashion\u2026territoriality\u2026\u201d (1973, p.72).\u00a0 Argyle included \u201cbodily contact, posture, physical appearance, and direction of gaze\u2026\u201d as elements of nonverbal communication (1969, p.13).\u00a0 This paper will primarily focus on three aspects of nonverbal communication \u2013 kinesics, haptics and proxemics.\u00a0\u00a0<\/span><\/p>\n 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\u2019 acquiring trust in the mediator.\u00a0\u00a0<\/span><\/p>\n Kinesics is the study of the types of bodily movements such as hand, arm, body and face actions.\u00a0 Haptic refers to the study of the effect of touch in human interactions. \u201cProxemics refers to the study of how space and distance influence communication\u2026\u201d (Hans & Hans, 2015, p.49).\u00a0 From a mediator\u2019s viewpoint each of the aforementioned specific areas of nonverbal communication is directly applicable to overseeing and engaging in productive mediation sessions.\u00a0\u00a0<\/span><\/p>\n Waiflein\u00a0 explains that \u201cResearch 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\u2026\u201d (2013, p.6).\u00a0\u00a0\u00a0<\/span><\/p>\n Kinesics<\/strong><\/p>\n An effective mediator is alert to kinesics which is the awareness of the importance of \u00a0 the initial face-to-face contact between parties and the mediator\u00a0 which provides the first opportunity to evaluate one another and commence the trust-building process. The mediator\u2019 should ideally engage in direct eye contact with the participant(s) for the \u2018appropriate\u2019 length of time displaying respect and professionalism inspiring trust.\u00a0\u00a0\u00a0<\/span><\/p>\n In the field of kinesics, facial expressions assume a prominent role.\u00a0 Lunenburg explains that \u201cFacial expressions convey a wealth of information\u2026\u201d (2010, p.2). A mediator should, from the moment of initial contact, maintain a clear-eyed, non-judgmental facial expression. The mediator\u2019s sustained eye contact with the parties also demonstrates \u201cinterest and attention\u2026\u201d \u00a0 (Lunenburg, 2010, p.2).\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n Haptics<\/strong><\/p>\n Haptics refers to touching during interactions.\u00a0 A Mediator\u2019s 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.\u00a0 Mediators should be alert to cultural signals which may restrict touch between parties and the mediator. \u00a0 Similarly, a mediator\u2019s empathetic touch may be misconstrued as \u201cthreatening\u2026\u201d so again, these movements should be judiciously considered before acted upon.\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n Proxemics<\/strong><\/p>\n Proxemics is the nonverbal communication techniques associated with concerns related to appropriate space between individuals.\u00a0 A Mediator should always be conscious of maintaining respectful distances between the mediator and the parties.\u00a0 Hans and Hans explain that the concept of personal space is related to the notion of territoriality which \u201cis an innate drive to take up and defend spaces\u2026\u201d (2015, p.50). When one intrudes on or invades another\u2019s personal space the action may be interpreted as hostility or aggression.\u00a0 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.\u00a0\u00a0\u00a0<\/span><\/p>\n Personal space or distances between people can, in general, be subdivided into public, social-personal and intimate space, each with an associated dimension.\u00a0 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\u2019 personal space (Hans & Hans, 2015, p.49).\u00a0 As mediators we should be keenly aware of the intrusion on participants\u2019 comfort and safe zone if we enter into their personal space.\u00a0\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n As a mediator, one is continually focused on conserving the positive energy, the harmony during the mediation session which contributes to participants\u2019 ease heightening the likelihood of productive dialogue and ultimately attaining a mutually acceptable resolution. One\u2019s perception of potential physical vulnerability resulting from intrusion into one\u2019s personal space will clearly contribute to an escalation of fear and anxiety.\u00a0 Respectful distance between the mediator and the parties sends reassuring nonverbal messages to the participants which \u201creveal information about \u2026personality, intentions, and attitudes\u2026\u201d about the mediator which in turn promotes a trusting environment (Ambady, Bernieri, & Richeson, 2000\u00a0\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n How people interpret others nonverbal communication mannerisms is directly related to their own cultural upbringing.\u00a0 As de Gelder astutely states \u201cIt is a truism that cultural stereotypes often shape the mind during the course of an individual\u2019s development and socialization\u2026\u201d (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.\u00a0 They point out that nonverbal communication is \u201cpassed on to you by your parents and others with whom you associate\u2026\u201d (Hans & Hans, 2015, p.51). \u00a0 Mediators should always be mindful of \u201cGestures seen as positive in one culture may be seen as obscene in another culture\u2026\u201d (Hans & Hans, 2015, p.51).\u00a0\u00a0\u00a0<\/span><\/p>\n The importance of mediators\u2019 familiarity with other cultures interpretations and manifestations of nonverbal communication is a useful tool in perfecting his\/her interactions with the mediation\u2019s participants.\u00a0 Disputants perceiving the mediator\u2019s respect for their culture are more apt to develop trust in the mediator which in turn promotes the mediation process\u2019 success.\u00a0 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\u2019s actions will be misinterpreted negatively by disputants.\u00a0 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\u2019s participants and then proceed with the appropriate approach for each mediation session.\u00a0<\/span><\/p>\n <\/p>\n<\/div>\n
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