On March 24, 2021, the MSBA’s Alternative Dispute Resolution Section joined the Maryland Council for Dispute Resolution (MCDR) for a lunchtime presentation on how to be heard in mediation. Hosted by section council president Jay Knight and treasurer Kathryn Huff, the program was moderated by MCDR board member Ceecee Paizs (The Mediation Center) and featured prominent ADR practitioners with tips for mediators to ensure that they are heard by mediation participants, and that participants hear each other. The discussion included a description of verbal and non-verbal cues that might alert mediators to behavioral health issues or other impediments to communication. More than 50 mediators watched the program, which is now available to MSBA members for on-demand viewing.
Retired Howard County Circuit Court Judge Dennis M. Sweeney (JAMS) kicked off the program by saying that he seeks buy-in from all participants by making them feel comfortable and heard right from the start. This requires learning as much as possible about the interpersonal dynamics among the principals and the attorneys, which helps the mediator determine who is (or is not) already being heard, who is (or is not) listening, and what can be done to change those dynamics.
Judge Sweeney tries to speak with each attorney beforehand, asking open-ended questions designed to elicit information rarely revealed in the parties’ mediation statements. Questions such as “what’s your client like,” “are there subjects that I should avoid or be sure to cover,” “how did this mediation come about,” “can your client afford this litigation,” or “how are the attorneys getting along,” for example, can reveal much about the relationship between attorney and client, which of them has an interest in settling the case, and whether warring attorneys are standing in the way of communication between their principals.
Judge Sweeney said that he also learns quite a bit from simply observing the parties. While he does not insist on opening statements, if an attorney chooses to make one the judge watches the parties rather than the attorneys. If a litigant seems surprised or aggravated by something they hear, that might indicate that their attorney never passed on that information and that there is a communications deficit that requires further exploration.
Judge Sweeney also tries to establish a rapport with each of the principals through informal discussion immediately before the mediation or during caucus sessions. In the presence (and with at least the tacit permission) of the attorney, he engages in chit-chat to learn more about the client and their life apart from the issues in the mediation. He finds that a more relaxed atmosphere helps to establish trust, which always facilitates communication.
MCDR certified mediator John Greer (Patuxent Mediation Services, LLC), adjunct professor of Negotiation and Dispute Resolution at the University of Maryland Carey School of Law, also spoke about techniques to get the parties to listen to the mediator and to each other. Like Judge Sweeney, Greer noted that lawyer and client are not always on the same page. Relying on research published in Litigation Interest & Risk Assessment: Help Your Client Make Good Litigation Decisions (ABA 2020), Greer explained the structural underpinnings of this phenomenon. Excessive demands, a reluctance to make concessions, and an unwillingness to share information with the mediator are some hallmarks of an attorney-client disconnect.
Lawyers, he said, can be locked into “a prison of fear,” worried that a candid assessment of the case might cause the client to take their business elsewhere. Clients, on the other hand, are often locked into a “conspiracy of opportunism,” exaggerating claims or withholding information to induce the lawyer to take the case in the first place. Lawyers tend to focus on tangible monetary outcomes, while clients might also be concerned about unspoken intangibles, like fairness, reputation, or their health and wellness. Closing the gap between these parallel worlds of understanding, Greer believes, is the key to getting lawyer and client working together to assess risk and evaluate options realistically.
Greer has found that the best way to narrow this gap is through elicitation—asking questions to elicit information that more fully reveals the tangible and intangible interests that need to be addressed in the mediation. Questions that elicit information about tangible outcomes include questions about costs (e.g., attorneys’ fees, expert witness fees, deposition costs) and how they might impact the client’s (or the lawyer’s) interests, plans, and financial interests.
Eliciting information about intangible costs can be trickier, but it is as important as the issues underlying the litigation—the litigation process often has a significant impact on the client’s physical and emotional well-being. Questions that can elicit information about intangible concerns include: “what do you hope to accomplish during this mediation”; “how has the litigation affected you so far”; “how long will this take to resolve it you don’t settle”; and “how does the ongoing litigation fit with other plans and goals that are important to you?”
By getting the parties to contemplate the full range of tangible and intangible interests, the mediator can get them to rethink and reality test their goals and expectations. The key, Greer suggested in closing, is to keep the parties thinking, talking, and perhaps most important, listening.
Kimberly M. Cuthrell, Ph.D. (Cuthrell Law Firm, LLC), a lawyer/mediator with an extensive behavioral health background, provided advice on how mediators can determine who might actually be listening at the mediation, or why they might not be. She agreed with the others that establishing a working rapport with the participants goes a long way toward engaging them in the process. Relationship building is particularly important for individuals with behavioral health issues that may not be obvious at the outset. Dr. Cuthrell suggested that mediation intake forms solicit this information much in the same way as they do advice as to whether other accommodations are needed. This information can also be elicited in pre-mediation discussions and can be pursued during the mediation as the need arises.
Dr. Cuthrell suggested that the mediator should be mindful of verbal and non-verbal cues and gestures that will help them understand how a participant is receiving the information. These include tone of voice, facial expressions, eye contact, body movement, touch, and physical spacing. Dr. Cuthrell warned, however, that these cues have different meanings depending on the individual’s background and experience. Failure to make eye contact or staring off into space, for example, might indicate that the participant is not engaged, is confused, is employing a coping mechanism to compensate for trauma being relived, or comes from a culture where eye contact is considered disrespectful or rude. Likewise, someone who physically leans in toward a speaker might be expressing genuine interest in what is being said or expressing anger at what they think they just heard.
Dr. Cuthrell offered many such examples and stressed that a mediator need not be an expert capable of instantly interpreting these cues. Rather, the mediator merely needs to be attentive to them and be prepared to inquire as to their meaning by checking-in with the participants when they are unsure.
The full 90-minute presentation is available here.