In every mediation, there are often several conflicts to resolve, conflicts of law, conflicts in the interpretation of the law, conflicts that arise from an action or inaction, and emotional conflicts. In a complex world, effective conflict resolution requires advanced strategies and techniques to navigate an ordinarily adversarial process, including the development of emotional intelligence (EQ).
Experienced and knowledgeable mediators recognize that resolving emotional conflicts is an essential component of a perceived equitable outcome.
Let’s not get ahead of ourselves, though. As you read this headline, you might have asked yourself, “What is Emotional Intelligence?” Emotional intelligence is the capability of individuals to recognize their own emotions and those of others, discern between different feelings and label them appropriately, use emotional information to guide thinking, problem-solving, and behavior, and manage their own emotions to promote emotional well-being in others. Put simply; EQ refers to how you process information emotionally.
Before starting, remind yourself why you are looking to improve your EQ. The best risk assessment in litigation requires a complete understanding of the opposing party’s position and its relative strengths and weaknesses. Given that you are likely already in litigation, or you are planning a mediation, it is a reasonable assumption that you, or the other party, have failed to fully appreciate the relative strengths and weaknesses of your respective cases. To better assess the case, you need to develop a better understanding of any unfamiliar content. You and your opponent need an environment where such strengths and weaknesses can be explored safely. The confidentiality and neutrality of the mediator and the presumption that mediations lead to resolution will create an environment well suited for that task. The party with the best EQ strategy is likely to be prepared for the mediation and learn the most during an unfolding conflict. It is not a question of winning or losing but improving your risk assessment. Once a better estimate of risk is established, the parties can rapidly move towards resolution.
EQ is a little like high school sports—a natural ability only gets you so far, but hard work and practice will prevail. The wonderful thing about seeking to develop emotional intelligence is that it is easy to grasp the concepts involved and improve your skills. Phipps Senft suggests that mediators must develop their emotional intelligence by enhancing their self-awareness to practice ethically and competently. “Self-awareness provides us with the ability to be not just impartial, but multi-partial to all parties in the mediation.” (Phipps Senft, 2004). The hard part is consistently deploying EQ without reverting to old habits that omit such awareness.
So, where do you start? The simple answer is that it starts with learning how to listen. Genuine active listening is more than simply hearing words. It is the ability to allow the speaker to finish what they have to say and consider not just the words but also the emotion behind them. People often say things they don’t mean, and you miss this if you only hear the words. Kaminskienė and Kelly assert that one of the most critical skills that negotiators require for effective social awareness is active listening. This skill, they argue, will help foster empathy, which can improve the emotional aspects of a negotiation. By promoting respectful and effective communication in mediation, all parties can participate in a quality experience. (Kelly & Kaminskienė, 2016)
Tip #2 – Don’t interrupt the person speaking. Indeed this is easy to do but again, think about the legal environment where your associate tells you something you disagree with. How many times do you allow them to get to the end of the conversation?
Tip #3: Be respectful of alternative perspectives. How do you do this? Well, we are back to listening and not interrupting. Once you have managed those two skills, try to understand why the person talking holds their position. Your truth may not be their truth; after all, that is why you are in a dispute.
Tip #4: Acknowledge the other parties’ position. This shows them that you have listened and have the added advantage of being respectful. Be prepared to concede good points and reflect on your own experiences. This may be contrary to most litigators’ DNA, but acknowledging the opposing parties’ case shows strength and confidence and encourages the other side to do the same—which is an important skill to master in mediation.
Tip #5: Consider everything that is going on in the mediation. Pay attention to how questions are asked and answered (so practice the questions and answers you expect to be addressed) and the tone (it is obvious but be respectful whatever the position adopted by the other side). Equally, where the parties sit may give clues pertaining to the hierarchy, whereas facial expressions and posture can provide clues about a participant’s attitude. These factors apply to all participants—the mediator, opposing counsel, and clients.
Whether consciously or not, we all apply at least some of these criteria in assessing the status of the mediation and the likelihood of a successful outcome.
Having an EQ strategy before you step into the mediation, and executing that strategy at the mediation, should enhance your understanding of the case in dispute and put you in a better position to assess the risk/reward of any chosen course of action.
This article may not radically increase your EQ; however, our goal is to shed some light on how successful mediators use emotional intelligence (EQ) to produce better results.
Phipps Senft, L. (2004, Spring). The interrelationship of Ethics, Emotional Intelligence, and Self Awareness. ACRresolution, 20-21.
Kelly, E. J., & Kaminskienė, N. Importance of emotional intelligence in negotiation and mediation. International Comparative Jurisprudence (2016)
Emotional Intelligence – What Is It and How Can It Be …. https://www.goalcast.com/enhancing-emotional-intelligence/
