A primer on understanding non-verbal communication cues in mediation
Whether you call it “reading between the lines,” non-verbal communication or interpreting body language, getting the entire message includes more than just the words spoken. There is extensive research on what percentage of a communication is verbal versus what is non-verbal. Some say up to 93 percent of a message is non-verbal.
Being able to interpret the non-verbal signals will not only improve a mediator’s ability to listen and understand what is being conveyed, but also aid the mediator to determine if a person is credible, or if there is empathy, which are often requisite factors when finding resolution in personal injury and medical malpractice cases.
Without getting both the spoken and the unspoken message, an attorney or any negotiator might not get the best deal, and leave something on the table. Just like the mediator, an attorney needs to be proficient at listening, observing and understanding the entire message: “Is this really their last offer?” or “Are they going to walk?” or “Is he telling the truth?”
It must not be forgotten that skilled communicators are often not only well versed in reading signals from other people’s eyes, expressions and gestures, but also are more adept at making sure that their verbal and non-verbal messages match. They may also be proficient at masking their own non-verbal messages.
Before diving into the subject of non-verbal communication, remember one major caveat: never rely on just one element of body language. Noting a number of signals is far more reliable. Also, there is not universality in the meaning of the various non-verbal movements. There can be significant cultural differences when it comes to interpreting these messages. For example, in some cultures looking away from a person when he/she is speaking signals disrespect, while in other cultures it is assumed that looking away indicates respect.
The three major aspects of non-verbal communication explored in this article include eyes, facial expressions and posture. Although some consider voice qualities such as, pitch, pausing, pace and other elements a significant part of body language, these are not addressed in this piece.
As the old saying goes: “Eyes are more accurate witnesses than our ears.” Eyes are the most unconscious indicators of what a person is really thinking or saying, and are the hardest to mask. Research has shown that eyes are the single most important attribute of non-verbal communication that indicates dominance. For example, when speaking to a peer, the majority of the time, the listener will look at the speaker, but if a person thinks they are more important than the speaker, then they will give little eye contact.
People very quickly read the meaning of a long stare versus a furtive glance. Eyes are very expressive, since the eyelid can add meaning by going from wide open to squinting, and the size of the pupils can even influence meaning by expanding or contracting.
Neuro-linguistic programming, NLP, provides an analysis for the meanings attributed to eye movement, when a person is speaking. If an attorney asks a question, and the person responding looks to the right, it often is an indicator that the person is guessing or constructing a deceitful response. If a person looks left, it is an indicator that the person is recalling facts or information. As the person responds, the movement to the right or left is not held. It is an extremely quick “flick” to the right or left, and so the attorney and/or mediator must pay close attention to catch the movement.
Another telling signal conveyed by eyes is frequent blinking, which is attributed to a person feeling pressured. Raising an eyebrow can be an indicator of acknowledgment. This can be an important signal that the person is willing to accept responsibility for their actions, and it may indicate that an apology or other offer of settlement is forthcoming.
Most people are familiar with the upward roll of the eye, which indicates frustration or disbelief. If a person rubs his/her eyes, it can mean they are tired, but it also is an indicator that the person is getting upset. Direct eye contact, when a person is speaking may indicate honesty; however, it is the easiest eye signal to fake.
Observation is the key to understanding if what is spoken is believed or even truthful. Smiles can be a universal welcome, and can also be faked. An “honest” smile will be symmetrical and creases are noticeable around the eyes and mouth. If the smile is not sincere, these lines will not appear. People can fake sincerity with firm handshakes and a knowing stride, but it is not possible to fake a sincere smile.
When a person smiles, and their lips remain closed, this usually indicates frustration or the person is hiding their true feelings. According to some research, if a person tends to bite their lip, grind their teeth or chew gum incessantly, it indicates that they are frustrated, not letting their actual feelings show, and/or are just tense. Nail biting sends a similar message.
When looking at a person’s face, it is important to notice movements and position of the head. If someone holds their head up, it usually indicates that they are paying attention; however, if it is held high, they are indicating arrogance, defiance or disbelief. When a person tilts their head slightly to one side, it shows that they are listening, and perhaps are reflecting on what is being spoken. If, on the other hand, a person tilts their head down, it signals dissatisfaction, criticism or disinterest.
If one of the mediation parties likes what they hear, more often than not, they will sit up and lean forward slightly. When a person sits up very straight and tends to “puff up” the chest, this signals resistance to what they just heard. It may also signal to the attorney or mediator that there is a change in mood, and the person is shifting from “I will go along with you” to “OK, now this is how it is going to work!”
Another subtle change in posture can be observed when a person’s shoulders move forward. This typically indicates that the person is unhappy with what they are hearing. This can also indicate fear or giving up, and can be a subtle but strong signal to pay attention to when mediating family cases, especially when there are self-represented litigants (SRL) or where there are significant power imbalances.
Arms and hands
Other body language signs can indicate additional thoughts or emotions. For example, if someone puts their arms behind their back, while clasping their hands, this indicates self-assuredness or confidence. Adjusting clothing, wristwatch, tie or purse, usually indicates insecurity or nervousness.
Placement and movement of hands are very strong signals. If a person’s hands are resting on the mediation table, palms up, this may indicate they are giving in, open to hearing more ideas, or appealing for understanding. If the palms are down, it indicates a position of power, dominance or resistance. When a person places their hands over their heart, it is in an effort to signal, “believe me” or “you can trust me.” The sincerity of this gesture is also one that is very easy to fake. When a person sits while resting their elbows on the table, and touching their fingertips together, essentially creating a steeple shape, the message is “Stop right there!”
Arm movements are telling gestures. For example, if someone crosses their arms over their chest, it can mean they are reluctant to accept the information being conveyed or indicating outright defiance. When the arms are crossed and the hands are clutching the biceps, this is a very different message – indicating insecurity.
Self-comforting movements need to be acknowledged with some reflective listening that not only captures the content, but also the emotion. Some examples of self-comforting are clasping one’s thumb in a clenched fist, cracking knuckles, ear tugging, or chewing on a pen or pencil. The latter example produces a comfort response similar to what a pacifier does for a child. When a person is observed clutching his/her wrist with one hand, it indicates frustration.
Finally, if a person rubs his/her nose, while speaking, it usually means that they are telling a lie or are exaggerating the facts. Similarly, when a person speaks while partially concealing his/her mouth with their hand, there is a very high probability that they are not making a truthful statement.
Some people will copy or “mirror” the movements of the person with whom they are speaking. Often the person, whose mannerisms are being copied, is completely unaware of what is happening. Mirroring can be used to gain trust, and it can also be used to manipulate.
Unconsciously, the person being copied gets a feeling that they have more in common with the other person, and are more likely to trust that person and to accept the information provided. Sales people often use this technique to get a prospective customer to trust them, which in turn will enhance the probability of a purchase. Mediators use this technique to get the parties to trust them, and hopefully this will encourage disclosure of additional information. Attorneys involved in negotiations use the technique to gain trust, and to reduce the other side’s resistance to an offer or a demand.
Learning to read and decode body language can be enlightening, can aid the mediator working with the disputants, and can also help attorneys negotiate better settlements. Reading the non-verbal cues that indicate an inconsistency with what is being stated, provides an opportunity for further questioning and clarification. There is extensive research that can help a person gain understanding and meaning of the entire message. Maybe the best reason to consider learning to read body language is that people, who are proficient, tend to be more popular!1
As of February 2019:
Nancy Neal Yeend is a dispute management strategist and mediator. As a strategist she designs programs to reduce workplace conflict. She founded of The End Strategy (TES) in Portland, Oregon and mediates pre-suit, trial and appellate cases. Nancy has served as National Judicial College faculty for nearly 25 years.
2017 by the author.
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