In my more than two decades on the bench and now as a neutral in alternative dispute resolution (ADR), I have had the opportunity to witness firsthand how interactions between the parties have evolved, or, in many cases, devolved.
Over the years, while the briefs or the motions or the judgments are important, I have come to believe that the most consequential work in any proceeding is found in whether the people in that room, counsel included, were truly present with one another and were willing to listen to each other.
Communication Has Become a One-Way Street
Today’s society communicates differently, relying on email, text and direct messages instead of one-on-one conversations. As a result, communities have become siloed. Conflict resolution is impacted by how little we have practiced interacting directly with one another.
So much of what determines whether clients find genuine resolution depends on whether the human beings in the room feel that they have been heard. And you cannot hear what is not said.
Why Active Listening Matters
My job as a neutral is to listen, maintain fairness and earn trust. Once the mediation begins, I believe in the power of active listening. All too often, a party arrives emotional, dug into their position and resistant to movement. The mediator’s task is to honor that emotional investment and listen for where the path forward might lie.
Active listening is not only an important tool for mediators; it’s also useful for counsel to better understand their client’s position. When clients feel heard, they tend to be more trusting. When lawyers come with their clients seeking workable solutions, there is a far greater likelihood of a durable resolution.
Shifting the Focus From Positions to Interests
Mediation is most effective when the parties can shift the discussion from what they want to why they want it. By articulating interests rather than positions, resolution becomes more attainable. When one party begins to understand what the other truly values, not just what they are asking for, the two sides can begin to see where their interests might align.
As a neutral, when parties come into the mediation entrenched, I avoid addressing the issues at the start. I begin by understanding who is in the room and what is at stake. A mediator who skips this step may reach a settlement, but not a resolution.
Creating Conditions for Engagement
One of a mediator’s key objectives is to create an environment where the parties feel safe enough to be open and honest throughout the process. After all, sensitive information is being shared. The parties need to know they can reveal their interests to the neutral in confidence.
The mediation process belongs to the litigants, not the neutral. Mediation works best when parties feel a sense of ownership of the proceedings. That’s not a philosophical position; it’s a practical one.
The Value of Being Truly Present
Mediation is a negotiation. Its principles extend beyond conference rooms to every human engagement.
I have learned that you can exchange emails, cover every question and produce every document and still not have truly met the person on the other side. Being present, being heard, being seen. That is what makes resolution possible. Respecting the parties, the lawyers and the process. Not a settlement. Resolution. There is a difference, a difference for all of our lives.
Showing up fully and interacting more genuinely benefits everyone.
