How We Mediators Evaluate, Through Words, Gestures and Sometimes Silence

Dwight Golann, IAM Scholar in Residence
dgolann@suffolk.edu

Do you give evaluations when you mediate? I suspect most of us do, although we may not consider what we do to be “evaluation” at all. At the Academy’s May conference I showed excerpts of videos of excellent mediators who presented views about a wide variety of topics in many different ways.  When I reviewed videos to gather material for the program, I was surprised by what I found.

First, even the mediators I was told were strongly evaluative never placed a specific value on a case.  No one said, for example, “Based on the facts I’ve heard today, I think the court is likely to return a plaintiff verdict of around $500,000,” or “I see a 4 out of 10 chance of your winning,” much less “this case should settle at $900,000.” Almost everyone limited themselves to adjectives, saying at most and only after hours of mediation, “I see a real risk here that a judge/jury might….”

This vagueness has a consequence:  We know that disputants interpret what they hear differently depending on their states of mind. (To test this, ask any group what a prediction like “real risk” means in percentage terms. You’ll find the answers almost always cover a spread of 30 to 40 points). That’s because mediators often intend to be misunderstood, in other words, to give disputants the ability to hear only as much of a viewpoint as they are ready to accept. We know we can make our opinions more specific later if necessary, but that it’s almost impossible to take back a precise statement once it’s out in the room.

Often mediators deliver opinions without using use words at all. You’ll see the videotaped mediators raise an eyebrow, frown, pause, squint, dip their head, lean back…. using expressions and body language to express viewpoints tactfully, to allow the listener to accept the bad news gracefully, or even ignore or fail to perceive an opinion they are not ready to accept.

I wonder though if we are always aware of the signals we are sending? Teachers tell novice neutrals how important it is to take note of disputants’ body language, but have we ever observed our own? In the “Gestures” segment of the videos, for example, you’ll see me momentarily close my eyes as a CEO complains of insulting language used by a lawyer. I called it my “Dr. Birx moment,” but I was never aware of it until recently. (On the other hand, when I responded to the lawyer by dropping my head and pushing my chair back, I certainly knew what I was saying). Perhaps at a future meeting, we should all point a cellphone at ourselves as we engage in a difficult discussion. We might learn from what we see.

Facilitative mediators advocate responding to unrealistic disputants with exploratory questions and “reality-testing”, taking care not to do so in a way that might be seen as evaluative.  But again I wonder.  Professor Deborah Kolb once observed that deciding to reality test implies that the mediator has developed an opinion about what reality is, that the disputant’s view is different and that the mediator thinks the disputant’s view would benefit from some testing.  As I observe mediators talking with disputants in what seems on the surface to be a facilitative dialogue, I often see different statements made in imaginary bubbles above the neutral’s head. When a mediator, in response to a rock-bottom first offer, asks a lawyer and executive in a thoughtful tone, “What do you suspect their response is going to be?”, some might say she’s simply encouraging them to assess their counterparts’ thinking. The lawyer and executive, however, understand exactly what she’s saying: “I don’t think they’re going to be thrilled with it, but…” Even if the questions are entirely neutral, if you return to a topic repeatedly disputants will get the message (“You notice he keeps asking about causation — I don’t think he’s buying our argument…”).  As I think about my efforts to lead a discussion of an issue, I can’t help but wonder what bubbles disputants have placed above my own head.

Offering evaluation through questions, I hasten to emphasize, is often good practice. Like gestures, questions allow listeners to hear an opinion without having to confront it directly. Your tact may be appreciated, especially in a high-context culture in which people don’t want others to “put all our cards on the table,” as we Americans like to say.  Again, if a viewpoint expressed indirectly is especially hard to accept, the listener can politely ignore it, or not perceive it at all.

Let me close by noting that no one who pays a mediator expects them to be merely a “potted plant.” Sophisticated parties know that we’re constantly evaluating as we work. They expect us to keep our opinions to ourselves, however, and let them show only as, and to the extent, doing so will be useful, in ways that help the process move forward, all while preserving the parties’ dignity.  Expressing opinions well is, I think, one of the most important ways in which we practice our craft.

IAM Blog Editor-in-Chief Christine Masters may be contacted at christine@masters-ribakoff.com.