We often hear about nonverbal communication. It may, in many circumstances be part of or fully inclusive of a dialogue. While we speak, we also show, and I as far as I am concerned, in principle, there is nothing wrong with showing your thoughts by body language. It can be quite subtle and can actually be done with an erudite tone. A wink here, a smile there, a frown, a knowing look or gesture can all communicate as well and sometimes better than words. In the world of multitasking, nonverbal communication can deliver a message concurrent with a parallel verbal statement or ongoing discussion by some other party.
The warning I sound here is; there must be some degree of respect and patience provided for in a meeting or a mediation. I have mediated many disputes where as one party talks about the subject, another in the room becomes expressive of their disagreement with the message, or their impatience with the length of time the message is taking. Raised eyebrows, outbursts of expelled air and disturbed facial expressions can verge on bad manners.
One of the very cool aspects of training to be a lawyer is the understanding that everybody has their turn to communicate, and if the information is false or tedious, there will be a time and place for rebuttal. If the information is redundant, a polite interruption may be appropriate to indicate that that material had already been reviewed. As always, good judgment is important.
Addendum to non-verbal communication--
After completing my post on non-verbal communication, I began to focus more on the positive and constructive aspects of this form of exchanging information.
While the negatives are obvious and often creations of emotion, the craft of the constructive, is born out of a sub rosa style wit, that covertly, but accurately delivers a message to an intended party. A glance at your watch (Alex Ferguson of Manchester United) while catching the attention of the recipient of the message(referee) or any type of body language that delivers a message without engaging the whole room or disrupting the flow of anyone else’s communication moment, can lead to important directions to enhance the momentum or the value of dialogues.
In caucus, parties and the facilitator often assess the progress of a particular direction and make adjustments as necessary. With NVC, the potential is there to make some of these tweaks while the meeting is ongoing.
In a sophisticated mediation, the mediator should be able to discern the nuances of nonverbal signals and quickly incorporate their significance into the facilitative task at hand.
Lawyers; love us or hate us, we are an important part of society’s free flow of business. We defend the rule of law and the interests of our clients including the right to conduct their business without unlawful interference. However, in today’s competitive world, we must promote ourselves and our businesses as well. Hopefully, reputation for good work is enough. Nevertheless, in an ever increasingly diverse world of communications, we find ourselves shoulder to shoulder with retailers and members of the service community, in a search for the most effective message.
As a provider of conveyancing services and wills, I find, surprisingly, that many people will make decisions on the use of our services based on price. If you step back and consider whether you would make an important decision concerning your estate or the purchase of your home on whether you could save twenty-five or fifty dollars, you might say no. You might, instead of being overly price-sensitive, go to the practitioner of your choice, and the reasons for that choice, would include reputation and other salient criteria that suggest your work will be done to your satisfaction.
Nevertheless, price is what it is, and yes, one can always use it as a means to obtaining work, as we have a free market, and price freedom is an important part of a democratic society.
However, if you can charge reasonable fees and do not want to be looking over your shoulder to compete with price sensitivity as a grounds for work intake, do what all successful lawyers do at trial; tell a story; tell your story. This does not exclude social media and other means of publicity, for telling your story in an empty barn, may as the old adage goes, be no noise at all. Therefore, with good taste, tell your story and hopefully the work will follow.
In court, the relating of what happened, will, if backed by evidence and a reasonable submission, receive favourable attention from the judge or jury. The Honourable Mr. Justice Leask told me as much last week. We all like a story, particularly if it conclusively progresses before we lose interest, and if in an entertaining way, it leaves us more enlightened, either in our imaginations, or in the storehouse of our analytical minds. If a bicycle retailer explains in their advertising, their history, the kind of work they do and even any customer satisfaction comments, then, they have provided a reasonable platform for a prospective customer or client to make a decision.
Story telling is bi-useful. We need to tell our story to get the work and then, for those of us in a persuasive or selling industry, we need to tell the story of our client or product to allow their rights to be protected or for our products to be well known and in demand. All of us who are in business, need our stories to be upfront, transparent and reasonable. Only then we can make a decent living and maybe vacation in Maui. At least that the way it should work!
Commercial mediations are about story telling. Last Friday, I had the occasion to present a mediation talk through the Continuing Legal Education Society of British Columbia. Being late on a Friday, I was pleased to see that almost all registrants had remained to hear my comments on mediation with reference to personal injury disputes. However, I realized that the speakers to follow me being, The Honourable Mr. Justice Peter D. Leask of the Supreme Court of BC and Stuart Cameron, Registrar, Supreme Court of BC may have had something to do with the extended attendance!
Never daunted by a reasonable challenge, I tried to up my game and give of my 2,000 plus mediation experience to the audience of paralegals and legal assistants. There were two points that I raised in the talk which I would like to under-gird here and many others that I will include in subsequent posts.
1. There is nothing wrong with there being different viewpoints in a mediation or generally, provided that the end result is not destructive, harmful or violent. Debate and point counter-point are important in our society and in our disagreements. The constructive result of different concepts is that creativity thrives on debate and ideas and a monotone world can be stagnant and unhealthy. Perspective expressed in an intelligent and mannerly way can help make mediation a very informal and useful way of resolution without the need to cross the court-room threshold. Express your perspectives but also listen to the other side. When that is accomplished, put an ear to the details of how to come to a consensual conclusion. Invariably, the end result with benefit both sides.
2. Tell the Story. I explained to the audience that one of the most effective things counsel can do in a mediation is tell a story with clarity and direct links to the evidence and the facts. As the opposing counsel hears a concise and clear version of matters they will advise their client that if the story is told in a similar fashion at trial, the adjudicator will apply the story to the law and if it fits, there will be a favourable decision for the storyteller. To my gratification, Mr. Justice Leask stated early in his talk that the previous speaker, in reference to story telling in mediation and litigation was right on the mark.
Maybe I should start doing litigation again or perhaps that was plateau point!
Five men in a sauna can be awkward, with a silence that hangs like anticipatory drips of sweat, all water, and no flow. Metaphorically silly as this may be, it leads to an important lesson about human interaction. Sometimes, when I attend the local pool and have a sauna, there is great interaction and evident display of personality, viewpoints and beliefs. Today, it was silent; five men fighting personal battles against the heat with not a word spoken.
When I realized that all of us at that particular time lacked the personality attribute of being a conversation hub, it revealed to me a social dynamic that plays out, time and time again. Recall how many social situations you have been in where a group of people can’t seem to shake the shyness and create a buzzing social dialogue. Then, put a certain personality in the room and most if not all parties are suddenly talking. Often, when the social hub leaves the room, the conversation shrinks backwards towards its earlier low level.
I also saw the applicability of this scenario to a dispute resolution discussion. The shy and introverted, will not have any less opinions than more extroverted individuals. However, these ideas may not come to the surface to be debated or agreed with to the same degree as those which are worn on the sleeve or voiced in terms of certainty. As opinions lead to the discovery of interests, a dispute resolution professional (DRP) needs to be able to determine who has strong opinions on a disputed matter, and then explore, these opinions, to determine what, and how firmly held, the pivotal interests are, of all parties to the dispute.
Therefore, the metaphorical question becomes, if you are sitting with four others in the sauna, how do you know what they are thinking if they say nothing. Short of body language or facial signal recognition techniques, the answer may be, you don’t. However, that cannot be the end of your efforts as a DRP. In a mediation, you must learn to engage those who are silent, either directly, or through another who may have the gift of conversation generation.
This is a concept that I am developing as an alternative to direct intervention. The DRP does not always need to be the one to confront the silent ones with respect to gaining knowledge. If there is a person, engaged in the process who has the personality to generate conversation, it might be advisable to use this indirect approach to stir the conversational matrix. If this occurs, then even those less prone to direct expression may speak to the issue at hand, and as a consequence, illuminate their thoughts, which may differ from hard-sided stated positions as discussed earlier in the more positional opening part of a mediation.
The lessons from the sauna are:
There are those who keep their thoughts to themselves. If their assistance or acquiesce is required, then it is necessary to have discovery and exploration of their very thoughts and the effect of how the illuminating of their inner needs and concerns will have on determining how to best serve their interests.
This can be accomplished in at least two ways. The first is with direct contact such as open ended questions, and direct but polite investigation as to their concerns and ultimately their interests. The other lesson, is to let this information come from the discussion, and as conversation becomes more at ease to the parties, there is greater likelihood of insight into the underlying interests of the parties.
A few weeks ago, I saw the same principle at work at the gym at The Semiahmoo Resort, where we keep our boat. Every morning, my friend Dan, a retired employee from Boeing who lives on his boat in the marina, is in the gym at 6am. Now you can imagine, that at that hour, there are a lot of quiet people working out. But not when Dan is there. He has the gift that makes him a conversation hub. He engages people until we are all contributing to the conversation and learning a lot about each other’s disparate lives. When I put this to him, he explained that at Boeing, that was what he did. He engaged and liaised between different parties and organizations including government agencies to resolve matters and some to agreements on outstanding issues. Sounds like a mediator’s job to me. For now, I will appoint him Dan of the Gym.