By Douglas J. Furlong, Esq.
We’re all familiar with the term “Emotional Intelligence” (“EI”). You may be surprised, though, at the depth and breadth of academic and scientific treatment EI garners. The literature includes debates regarding what EI is, what it’s not, whether it’s mostly innate or learned, the different situations where it’s particularly important to the outcome, and other nuances. One thing all the experts agree on is that regardless of how it’s defined and teased out, having more EI in play when resolving disputes is always good. I would argue it’s essential.
The June 6, 2022 edition of The Economic Times, What is ‘Emotional Intelligence’, discusses five traits those with high EI share:
Terminology and Basic Issues
- Self-awareness — aware of one’s own strengths and weaknesses
- Self-regulation — thinking before speaking; remaining calm
- Motivation — being self-motivated to complete the task at hand, leading by example so others don’t give up
- Empathy — ability to put oneself in another’s shoes to know what they’re thinking and what’s important to them
- Social skills — ability to build rapport and trust with others
In every case there are certain items beyond the mediator’s control. The mediator doesn‘t create the facts. The mediator doesn’t create the law. And, of course, these things are tremendously important in any legal dispute. But if a truly objective, wholly rational assessment of the facts and law were all that’s required to reach resolution, then presumably the parties would have already done that. Yet, the dispute remains. Why? Because the decision-makers on each side are human beings, with varying degrees of reasonableness, perspective, risk aversion, anxiety, motivation, bias, upbringing, worldview, anger, ego, pride, resentment, hubris, agreeableness, and, yes, EI. Add to this the fact that someone got into a fight with their teenager 20 minutes before the mediation and it becomes a complex stew, with the facts and law just a part. An effective mediator is attuned to all of these dynamics, and will not just recognize and manage them but will use them to fully explore what type of resolution is possible.
How does this translate if you want to be a better mediator or you’re an attorney wanting to hire a better mediator? Here’s a checklist of EI traits an effective mediator (“M”) should have and employ in virtually every case:
- Does M have the ability to adapt to the personalities in the room and make them feel comfortable with the process? How quickly and adeptly can M establish rapport, the first step to trust?
- Does M know when to listen? At the outset of a mediation M should do very little talking and almost all the listening. This may be the first time a party has felt heard in the entire case.
- Does M know when to have a tough discussion? Every mediation has moments when M has to tell a party something they don’t want to hear.
- Does M know how and when to call out posturing without losing a party’s trust? Posturing is part of litigation. But at some point the parties need to “get real” if a deal is to be had, and M’s job is to bring reality into the discussion.
- Does M know when to switch gears? A tough discussion cannot happen too early. M needs to know when the parties are ready to hear a different view.
- Does M know how to determine who’s calling the shots? The “plus-one” sitting silently may be the true decider, and M needs to effectively engage them to uncover what really matters.
- Does M know when to coach? Sometimes a party’s negotiating strategy is counter-productive, and M needs to know how and when to suggest an alternative way to keep the discussion on track.
- Does M have a sense of perspective, and know when to share it? A win at trial may be less beneficial than a settlement now, once one considers the time, money and distraction necessary to “win.”
- Is M persistent? A mediator’s grit is invaluable. M should be the last one to give up on a settlement.
- Does M instinctively know how to build trust? This is the primary EI trait that lays the foundation for everything else.
Not every case will settle. But consistent use of these EI principles will maximize what’s possible. And once that happens, anything can happen.
Editor’s Note: Douglas J. Furlong, along with Judge Steven I. Platt (Ret.), will be presenting Leveraging Emotional Intelligence in Mediation — A Program for Attorneys and Mediators at the 2023 Legal Summit in June in Ocean City.
Douglas J. Furlong is an attorney, mediator and arbitrator with 35 years’ experience litigating all types of civil cases and over 25 years’ experience as an ADR neutral regularly called upon by the courts and colleagues to help get their cases resolved. (Learn more at www.furlongadr.com.)