The Importance of Listening in Mediation

by Wayne Wilson, Esq.

Mediation provides the best format for all parties to present their respective positions regarding the issues
being litigated in a case – whether that be liability, damages, causation, or any other element for consideration.  Everyone sitting at the table has the opportunity to discuss, argue, inform, and communicate their thoughts and opinions, without contradiction or objection from the other side.  All facts and issues are ripe for consideration, with or without those pesky legal impediments such as relevancy or admissibility.  That is one of the beauties of the mediation process, i.e., each party having the right and ability to “have their say and tell their story.”

You will notice that what I just stated as the “great positive” of mediation – the parties right and opportunity to speak – fails to include probably the most important part of the mediation process: Listening to what is being said.  It does no good for you to present great arguments if you are not being heard.  And it does no good for the opposing party to present great arguments if you are not listening. If we fail to listen to what the other side has to say and refuse to include their comments, thoughts, opinions, suggestions, and concerns into the final evaluation of the case, we’re not likely to be able to reach a result which is a “win/win” settlement.

The Role of Active Listening

Listening is often the hardest thing to do if you want to do it right. It must be “active” rather than “passive” in nature so that the information being provided assists your decision-making in properly evaluating the case. If you don’t listen intently and with purpose to what the other side is saying, you will not be able to use the information for your benefit. Mediation provides the opportunity to hear the good, the bad, and the ugly.  And that is exactly what you need to obtain a settlement which is to your benefit. I always start a mediation by meeting with the parties separately, in a setting free of distractions, so the focus is entirely on the speaker. It is important to understand the implications of what is being said, not just the content.  And it is important for the speaker to understand, and have confidence, that I am truly listening to what he wants to say.  The main focus is on the participant’s agenda, what the person needs for others to hear.

The next step in the mediation is crucial.  This in the opening caucus, when everyone is in the same room sitting across the table from each other and, may for the first time. This is an opportunity for the parties to have a face-to-face conversation and deal with their issues and concerns. It is imperative (and not to be lost in the equation, “respectful”) to actively listen to what the other side has to say.  And this is a two-way street.

With that being said, if listening is important,  not listening and showing total disinterest is deadly to the
mediation process. An example of this (and unfortunately a true story) is a mediation in which the plaintiff was a no-nonsense, mid-50’s gentleman who was ex-military and had earned and deserved respect and had a “right to be heard.” I told him that this was the opportunity for him to have a frank and honest conversation with the representatives from the insurance company. And that he should simply look them in the eye and speak to them “man-to-man.” He did this exactly, and the insurance representative sat across the table, never made eye contact, sat disengaged, flipped his pen in the air, never acknowledged any statement or comment made, and did not even tell the plaintiff that he appreciated, understood, or even wanted to make efforts to get the case settled. It was a catastrophe. And I nearly lost all credibility as a mediator because it was my suggestion to lay it on the line.

The primary problem when “groups” begin to be dysfunctional, i.e., when the mediation process begins to suffer and fail, is that people simply don’t feel heard or respected, as in the example above.  It is likely that by the time a mediation takes place, a great deal of communication has transpired between attorneys, plaintiffs, family members, claims personnel, the court, etc., but to no avail.  Others have very likely become impatient with the repetition that not listening engenders.  They dismiss whatever is said as repeating the “same old song” or “telling the same story” and may be in the room, but not in the conversation. But at mediation, for the first time in the litigation process, the actual people who are involved and affected by the decisions being made are providing the information. Their positions are not being filtered. Suddenly, the things they have been saying for a long time have more credibility than they had before. And what they have to say has import as to the value of the case. So all either side has to do to get a better understanding of the true value of the case is listen.

Mediation Settlement

Listening to Settle

I recently mediated a case in which the plaintiff (a well-educated, older gentleman, with an excellent work history as an administrator in the county school system) was being completely honest about the injuries he sustained in an accident. He attributed most of his problems to the accident, and it was a case of clear liability. He also had an injury which prevented him from doing something he loved: refurbishing old cars. That may mean very little or nothing to some people, but it meant the world to him.  During the opening remarks by the plaintiff, the defense counsel acknowledged liability and did not try to posture by
discussing “legal” issues which were available, which would have meant little to the plaintiff. The defense counsel listened to what the plaintiff regarding the impact of his loss. More importantly, the defense counsel re-visited that issue late in the mediation–not at the plaintiff’s request, but on his own.  This act listening to what the plaintiff said hours earlier was the bridge to success.  All of the issues, facts, concerns, positions properly raised by the defense and relayed to the plaintiff throughout the mediation were recognized and understood as legitimate factors in determining the value and not just a way to lower the settlement value of the case. It was defense counsel’s listening and proper response to the plaintiff’s issues that got the case settled for a fair settlement value.

Good listening requires:

  • All decision makers in the room
  • No distractions (cell phones, etc.)
  • Full attention
  • Patience
  • A genuine effort to understand

This is a lot to do for a short period and even under the best of circumstances. But it gets results. Mediation is the best moment to get a matter resolved in a timely, cost-efficient, and reasonable fashion. The parties have absolute control. Certainty is assured. All we have to do is listen.

Mediator Wayne WilsonTeam Leader Wayne Wilson, Esq is a mediator and arbitrator with Miles in Atlanta.  He has mediated more than 1,000 cases during his tenure with Miles. He specializes primarily in Premises Liability cases; Commercial Liability claims, Automobile/Trucking, Property Damage, and Subrogation Claims.  To schedule a mediation or arbitration with Wayne, please call 678-320-9118 or visit his online calendar.