Adv Jacques Joubert

Independent Mediation Analyst

Commercial Mediator



Woza Mediation South Africa Blog!

The tools used by mediators to ply their trade with a little help from the FBI.......

Wednesday, 22 January 2014

 “One of the best ways to persuade others is with your ears – by listening to them.” Dean Rusk.

Active listening is a core skill for mediators and mediation also offers an opportunity for mediators to model active listening to the participants, and coach the participants to improve their listening skills.

Active listening is a structured way of listening and responding to others and involves concentration and focus to understand as fully, accurately and on as many levels as possible what the other person is saying. FBI Negotiator C Voss refers to active listening as deep listening in a fascinating interview.1

Listening with attention and respect shows that what a person is saying is important. It is an effective technique for a mediator to develop rapport, extract narratives and explore the underlying interests of the participants.

Active listening is not complex but requires conscious effort and self-discipline. It requires the confidence to suspend judgement and the humility to refrain from pretending to have all the answers.

The essential techniques of active listening are:

(1) Summarising

(2) Open-ended questioning

(3) Reframing

(5) Awareness of non-verbal communication

(6) Sensitivity to diverse social identities and sensitivities in post Apartheid South Africa

(1) Summarising:

Summarising is also known as reflective listening. The listener repeats what he thinks the speaker said to ensure he heard the speaker correctly. It is identified by statements such as “if I understand you correctly you are saying………” and gives the speaker the opportunity to clarify to prevent misunderstanding. This technique is not used for every statement. It is used to build rapport, emphasise important issues, and to clarify uncertainty. 

Summarising is a technique that demonstrates the confidence of the mediator to be vulnerable, i.e. to allow the participants to freely correct any mistakes the mediator may have made in summarising what the particpants had to say.

(2) Open-ended questions

Open-ended questions are explorative in nature and cannot be answered with a simple "yes" or "no", or with a specific piece of information. They give the person answering the question room to provide information that seems to them to be appropriate. Open-ended questioning normally begins with "how" or "what" and respects the autonomy of the other party and thus less likely to trigger a defensive response. They display curiosity and require a more in depth response. It is an effective technique to extract a narrative from the participants and their underlying interests, concerns and expectations.

If you ask a participant at mediation, "when did you take up filmmaking?" You may hear, "after university." Instead ask, "How did you become interested in filmmaking?" You might hear something far more interesting, "when I was nine years old, my grandmother showed me an old home movie of her childhood in Eldoret in Kenya. I fell in love with the visual medium..."

Open-ended questions are recommended for use in cross-cultural environments in which the social identities and sensitivities of the participants and the mediator may exacerbate the conflict.  Mediators in South Africa have their own cultural and social identities that may raise the suspicion of bias if one of the participants has the same and the other a different cultural and social identity.  Open-ended questions respect the dignity and autonomy of the person to whom the question is directed, and instils confidence in the process and the mediator.

There are according to FBI negotiator C Voss about 4 or 5 open-ended questions that can be used on a regular basis:

“How would you like me to proceed?”
“What is it that brought us into this situation?”
“How can we solve this problem?”
“What is the objective?”
“What are we trying to accomplish here?”

An open-ended question beginning with “why” may however provoke a defensive and unhelpful response. For instance: “Why did you not pay the rent?” It simply is a matter of reformatting the same question: “How did it happen that the rent was not paid or what caused you not to pay the rent?” for the participant to feel safe and comfortable enough to openly discuss the reasons for not paying the rent.

Closed-ended questions that require a “yes” or “no” or some specific piece of information is however useful to confirm, clarify or make logistical arrangements, but unproductive if the mediator is trying to extract a narrative from the participants, or explore their underlying interests.

(2) Reframing

Framing refers to the manner in which a participant describes the way he sees a conflict situation, goal, interest or issue. It forms part of a positional statement.  Participants often describe their dispute in a negative manner, usually accompanied by emotional content or designed for emotional impact.

Reframing is a technique to re-word what the participant has said in a way that it becomes more constructive to resolving the dispute. It not only helps the person better understand their own thoughts, but also clarifies the issues and de-escalates the tension between the parties. Reframing should not distort the content of what the person has said. It keeps the message but changes the language to alter the spirit or feelings that inhibit positive engagement between the participants.

By reframing language to include the values you hear, you create the opportunity to discuss what each value means to the participants. Then they can begin to think how their underlying interests may be addressed rather than focus on point scoring, or teaching the other participant a lesson.

Examples of reframing:

Statement: “He sits on all the information like a king sits in his castle. Why can't he be more helpful and share the information?
Reframed: “It’s important for you to work cooperatively.”
Statement: “The bastard should rot in jail for not paying the maintenance!”
Reframed: “You are angry and believe there should be consequences for not paying maintenance.”
Statement: “She is a slob I can’t work with her!”
Reframed: “It bothers you when you find papers spread around the office.”
Reframing is often introduced by the following expressions:

•    So, it is important to you that...
•    What I understand you to say is...
•    What you are concerned with is...
•    What you need to see here is...
•    Your goal would be to……..

Participants often use metaphors, proverbs, imagery and analogies to explain how they see their dispute. Mediators should, where appropriate use the same idioms and metaphors the participants use, to express and explain their realities.

A powerful political example of reframing a conflict occured when Cyril Ramaphosa many years ago said that white South Africans had to be freed from the prison their history built for them.

(3)  Non-verbal communication

We continuously give and receive wordless signals to each other during our interactions. Wordless signals, known as non-verbal communication, comprise of our gestures, the way we sit, our facial expressions, how fast and loud we talk, the tones of our voices, how close we stand or how much eye contact we make. These wordless signals continue even while we are not talking and make up two thirds of all our communication.

Research has shown that non-verbal communication is much stronger than verbal communication, and when faced with mixed signals, the listener will in most cases choose the non-verbal over the verbal. The non-verbal may also be described as the unconscious language broadcasting our true feelings and intentions at any given moment. People who roll their eyes for instance broadcast contempt, disdain and disbelief without necessarily, being aware of the emotional impact of their non-verbal messaging.

In a recent mediation over sensitive heritage issues, one of the participants (a white person) pushed back his chair and started staring at the ceiling while the other participant (a black person) was delivering his opening statement. In a private session, the black participant immediately complained about the other party’s body language, but was not prepared to challenge him in a joint session. He gave the mediator permission to convey his anger to the white participant. The white person claimed to be oblivious of the non-verbal message of his body language, but to avoid it becoming an unnecessary distraction, adjusted his body language during further joint sessions. 

Cross-culturally differences exist in non-verbal communication and mediators have to be sensitive when they arise and threaten to exacerbate the conflict. Some South Africans may see eye contact with a superior as disrespectful while other South Africans may see the lack of eye contact as a sign of dishonesty. Some South Africans who walk into the office of a superior may take a seat before being invited to, out of fear that looking down on their superior sitting behind the desk may be disrespectful. On the other hand, other South Africans may regard it as rude to sit down before being asked by their superior to take a seat.

Non-verbal communication has unique features amongst the diverse South African population, but there are many more universal features that we share. Smiling, frowning, laughing and rolling our eyes are just a few of the many thousands of universal signals we use to communicate with each other.

A mediator’s awareness of non-verbal communication by himself and the participants is an essential attribute for a mediator to have. At bare minimum, mediators should use open body posture (leaning forward towards the participants with unfolded arms); appropriate nodding and appropriate eye contact during the mediation. Most of all he should be relaxed and comfortable in his own skin.

Private sessions at mediation offers a unique opportunity for mediators to make participants aware of their (mostly) unconscious non-verbal communication.

(6) Sensitivity to diverse social identities in post apartheid South Africa

South Africans and commercial mediators are not culturally neutral or sterile. No one in South Africa is free from the social identities that have been forged in part by colonialism, nationalism and Apartheid. Commercial mediators are from time to time confronted by difficult conversations in a post Apartheid South Africa. Understanding the impact of social identities may help them overcome communication barriers between their clients, the participants.

It is for instance important for mediators to be conscious that South Africans who benefited from Apartheid tend to believe that the past is over, while South Africans who were prejudiced by Apartheid tend to believe that the past is not over yet. It is likely to offend people who were prejudiced by Apartheid to be told that they should stop harping on about the past and focus on the future. On the other hand, people who benefited from Apartheid are likely to fear that the past may forever be used to justify racial discrimination against them. Acknowledging that both perspectives are valid makes it easier to contextualise difficult conversations in South Africa.

Case studies developed for the commercial mediation course of UCT Law@Work are partially designed to foster awareness of how different belief systems and narratives may complicate communication and resolution of disputes in South Africa. Active listening is a powerful tool to encourage difficult conversations, especially in the face of denial about the elephant in the room that needs to be spoken about. Anyone interested to find out more about UCT's Law@Work commercial and workplace mediation courses for 2014, may email Irena Wasserfall at This email address is being protected from spambots. You need JavaScript enabled to view it. .

William Ury, co-author of Getting to Yes, suggests that the way to deal with heated confrontations is to stop, listen and think, or as he puts it “go to the balcony” when the situation gets tense. Mediators have to be emotionally resilient and are not immune from attack.

At mediation between two major political parties a few years ago, one of the participants had no qualms to sarcastically ask the (white) mediator, “so where in Africa do you come from?” The mediator responded: “the important issue here is not where I come from, but whether a free and fair election is possible in this municipality.” The participant was testing the resilience of the mediator. It would have been disastrous if he had reacted defensively.

Culturally sensitive mediators always assume that there is a significant possibility that cultural differences are causing communication problems, and respond slowly and carefully in cross-cultural exchanges, not jumping to the conclusion that they know what is being thought and said. 

Diversity communication expert Francois Botha believes that mediators should not shy away from difficult conversations and talking openly about diversity issues and different perspectives may be a catalyst for a lasting settlement of commercial disputes in South Africa.

In closing commercial mediation is not only about resolving the personal aspects of the dispute. Instead, the resolution of the commercial and legal aspects of the dispute, remain the main concern of commercial mediation.
 

1. Interview available at http://www.acbmediation.nl/upload/articles/files.

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