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Non-Verbal Communication in Mediation

A mediator should be aware of different methods of non-verbal communication such as gestures and the use of physical space. A developed understanding of these aspects of communication may contribute to assisting the parties reach a settlement.

A gesture is an instrument of communication which can be as powerful as a spoken word. It may also reflect on the power relationship between the person making the gesture and the person to whom it is directed. Folding ones arms while listening is generally understood to risk conveying negativity and defensiveness. A tense posture and other behaviour such as hand-wringing may suggest a degree of anxiousness.
These kinds of actions are just as likely to be subconscious as they are deliberate. In either case, they may impede the mediation participants from communicating effectively due to the negative signal being sent. A mediator may look to counter unhelpfully negative gestures and body language by intervening in different ways. A direct method is to request the person in question to look at and address the mediator only. The negative effects of gestures and other non-verbal cues can be removed altogether through the use of caucusing, that is to say keeping the parties in separate areas and having the mediator “shuttle” between them. In this case, the mediator is solely responsible for the way all communications are delivered.

The use of space is a significant component in communication and interaction. It has been noted in academic research that people tend to have expectations and norms about the physical space between them depending on the person with whom they are interacting and the context. These can be broken down into the following categories: intimate, personal and social. No or little distance conveys intimacy, examples of which include hugging and hand holding. Personal space tends to be characterised by a distance of about two feet, as seen between close friends. “Social” distance of about four to seven feet is the normal distance for people who work together. It is also the distance for people who do not engage in the intimate or personal sphere. People tend to become uncomfortable if they feel, from their point of view, the norm has been violated. They may make to redefine the space to address it. This can quickly tip into hostility if the feeling remains.

It is a good idea for a mediator to pro-actively manage space at play during a mediation, particularly during a joint session involving all participants. While negotiating together, the parties need sufficient space to be comfortable. This requires the mediator to pay attention to the expected number of participants and give careful thought to straightforward matters such as the size of the table, if one is used, and the number of chairs that can be seated comfortably around it. A mediator may seek to place herself between the parties to sub-consciously reflect her impartiality.

All of this said, there may be occasions where a mediator may strategically set out to subvert spatial expectations in order to have a different impact on the person with whom she is communicating. Sometimes this might be used to disarm someone, in a positive and constructive way, in order to open up their mind to new ways of thinking.
The degree of formality of the space is relevant. A high degree of formality may reinforce the seriousness of the issues. Where litigation has been commenced and both parties face the consequences of winning or losing, the use of lawyers’ offices, characterised by an institutional setting, with office furniture and staff in formal business attire, may remind them that an even more formal forum awaits if they do not settle their differences: the courtroom. Correspondingly, a disagreement between business partners may be more appropriately be dealt with in more informal setting, such as their usual place of business. The familiar surroundings may remind the participants of what is worth preserving. The absence of a hostile or unfamiliar environment is also one less thing to think about.
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