The Expert Podcast

So how do you know if your mediator is a skilled facilitator or just an average mediator? A really good mediation is done by somebody who performs what's called active listening. You might think that listening is just a passive thing where you don't have to take any action.

An active listener as a mediator does five things for you. First of all, they get your story. That's obvious. You want to tell your story as a participant in a case—whether it's a litigation, a divorce case, or any other type of conflict. You have a story to tell. You have facts that you want to convey. You have a history you want to talk about. Remember, the mediator, the other party, anybody in the world doesn't know your story like you do. You have a very specific knowledge and history of entirely what happened to you in your dispute. You want to tell that to somebody. You want to convey that history to another person. An active listener gets that story from you. They don't just sit back and let the words land on them—they actively solicit that story from you. It's not just words. It's a story.

In addition to that, number two is they're gonna probe and clarify the meanings of what you're saying. If you say, "Well, I saw the sky was blue," well, what does that mean? Why did you say the sky was blue? Did you notice it was good weather? Did you notice that it was an unusually good day? Were you in a good mood? The fact that you said the sky is blue means more than just the sky being blue. It means that there's some hidden meaning behind it, or subtext beyond what's just said in words. An active listener hears your story, but they also probe more and clarify the meanings of what you're trying to say.

Number three is we're listening for emotions. The most important factor in resolving any kind of dispute is the emotions—it's not the facts. The facts of the case really are just the justification for emotions. The emotions are what solve a case. You're not there to really dispute facts. You're there to resolve your emotions. You have anxiety, fear, anger, stress—maybe greed—and those emotions are what's driving your dispute. So telling your story, yeah, that's a good part. Getting the meanings is a good part. But the key is getting to the emotions—what's driving you and the other person's emotions too. The other side of the case has emotions as well.

Once the story's been told, the clarification's been established, and the emotions are understood, then it's a summarization—really painting a picture of what's happening with that case. Summarizing the case so it's easily understood—that's step four.

And another very important factor that a lot of people don't realize is a good mediator knows how to put a value on silence. A mediator should listen more than they talk. A mediator should absorb and take things in and solicit more out. If the party says 20 words, how do I get the party to say 40 or 50 or 100? How could I get more information and feelings and emotions from the other side? So silence is a great tool to elicit more involvement from the parties. In fact, if you were talking right now, telling your story, and I asked a question and I just stopped and I shut up and let you speak, that awkward silence would be a reason that you would say more about what's going on.

And the more that really what's going on comes out, the easier the solution. In most cases, the reason the solution does not happen is because only the surface story is what's out there. The real solution is sometimes hidden—buried—sometimes intentionally, sometimes subconsciously by both parties. Most cases in mediation, the answer is already there. Both parties already agree on everything that needs to be done—they're just unwilling to be vulnerable about it. Let the mediator do that. Let the mediator take that burden off of you so you don't have to force your way through to have your day in court or to force your will on somebody or have their will forced on you.

The answer is probably already there—it's just getting your story out and having somebody listen to you and hear it. In fact, the phrase that most people say: "I want to have my day in court"—think about it. Why do you want to have your day in court? What do you want to do on that day? Is it because you want to win? Is it because you want to talk to a judge? Is it because you want to see what the inside of a court looks like? Is it because you want to be on Law and Order or People's Court? No.

Think about it. The reason you want your day in court is because you want somebody to hear your story. That's it. It's all about emotions and getting your story out there. So let a mediator do that for you. You'll have the undivided attention of a person who is interested in your story and is interested in a solution—not an attorney who's interested in billable hours, not the other party who's interested in winning over you or shutting you down. You have a mediator that's interested in hearing your story, hearing the meaning behind it, and the emotions that are creating the anxiety that can easily be dissolved.