Role of the mediator in creating an environment conducive to effective communication

Effective communication can be considered the most important element for the success of a mediation process. If the parties do not often take seriously the importance of communication, the mediator is invited to pay attention to it for two main reasons.

Good communication between the parties will allow them to engage in a constructive way, which will facilitate exchanges. This will create a dynamic between the parties allowing the mediator to better understand the different aspects of the conflict, thus facilitating the development of avenues and options towards an adequate solution.

The quest for the effectiveness of communication is a regular task that will last throughout the process. The more effective this communication is, the easier the agreement is to reach. It is in this context that the role of the mediator is of major importance: he must make sure to put in place, at each stage of the process, all the techniques that will facilitate communication between the parties.

What is effective communication in mediation?

It is a communication that takes into account not only the element of persuasion but also the emotional and cultural aspects, which are predominant in such a process.

The element of persuasion:

communication strategies leading to persuasion can be analyzed according to Aristotle’s typology: Logos, Ethos, and Pathos[1]. The Logos is the substance of the message communicated. It is therefore the arguments and concrete ideas that parties want to convey. Ethos refers to the credibility and authority of the speaker while Pathos is the sensitivity that the speaker manages to arouse in the audience.

If the goal of a communication strategy is to persuade any audience, however, an ideal balance between Logos, Ethos, and Pathos must be achieved. The other element to take into account is the fact that persuasion in an ordinary trial, whether state or arbitral, differs from persuasion in a mediation process. During a trial, the aim of the communication strategy of the different parties is to persuade and therefore convince the judge of the merits of their claims, using traditional means of proof relating to procedural law. The resolution of the conflict is then carried out according to the logic of confrontation between the respective parties.

During a mediation process, the parties also tend to play the same game and try to convince the mediator that they are “right” and that the other party is “wrong”[2]. But if the very essence of mediation requires a spirit of collaboration between the parties, then persuasion must be thought of differently. Sharing individual needs and objectives aiming at a common end involves persuading oneself, as well as the other party, to detach themselves from their respective positions in order to converge communication efforts towards a common interest(s).

The emotional aspect

The emotional component predominates in a conflict. Any conflict implies people are charged with emotions[3]. And the conflicts in which we can feel the exteriorization of emotions are not limited to a specific branch of conflicts. Family, inheritance, neighbourhood disputes as well as those relating to business and workplace, etc. are all imbued with emotions[4] taking various forms.

This emotional aspect allows us to establish the difference between the judicial resolution of the dispute and the extrajudicial resolution, mainly by means of mediation. Judicial resolution or arbitration, proceeding according to “a vertical relationship”, tends to neglect the emotional aspect of the conflict. The quest for a court decision or an arbitration award is done by focusing mainly on the factual and legal elements of the conflict.

On the other hand, the choice of mediation to settle a dispute makes it possible to identify and deal with the conflict according to its object, but also according to the relationship between the parties[5]. The reason is simple and consists of the following: it is “the horizontality of the relationship” during a mediation process that will allow only the parties to find the solution. It is therefore difficult to separate the problem to be solved, which constitutes the essence of the conflict, from the individuals and their relationships[6]. The latter are in fact conditioned by their emotions, which can both be at the origin of the conflict and constitute its result.

The cultural aspect

The cultural dimension of the conflict has recently been given particular attention[7]. Culture in the broad sense can include nationality, ethnic origin, religion, political ideologies, etc. In a mediation process, cultural differences can be analyzed in the relationship between the respective parties, but also between the latter and the third party acting as mediator. But what is the link between this cultural dimension to be taken into account during mediation and communication? The answer seems obvious: cultural differences can create misunderstandings, making communication difficult or even impossible, deepening the conflict already born or generating others. Thus, the higher the cultural gap, the higher the risk of misunderstanding, the more difficult communication, and the lower the chances of reaching an agreement. This is not, however, unique to interstate, ethnic, and communal conflicts, but also applies to cross-border commercial disputes where a divergence in culture and business ethics can be a problem.

Here too, choosing mediation as a means of settling disputes induces the parties to take into account additional elements, which they will in no case be confronted with if they have chosen to end their conflict by traditional judicial means. Thus, if the effectiveness of mediation depends on the ability of each party to understand and appreciate the interests of the other, making this understanding possible requires taking into account the cultural aspect. It is here that the role of the mediator will be of major use.

Consideration of the three aspects in order to create an adequate communication environment:

Poor communication between the parties can be a source of conflict, but can also aggravate a conflict that has already arisen. No one can therefore ignore the importance of the mediator’s communication qualities and skills in apprehending the conflict. These will then allow the parties to engage in constructive exchanges allowing them to reach an agreement. But the creation of an adequate environment for effective communication firstly requires that the mediator takes into account the three components persuasion-emotions-culture.

Consideration of the persuasive aspect

If effective communication requires a balance between the elements of Logos, Ethos, and Pathos, this can only be achieved through effective intervention on the part of the mediator. Indeed, the parties can neglect one of the three components, making communication difficult. This is where we can see the “added value” conferred by mediation on negotiations between the parties: the intervention of an impartial and neutral third party will allow them to overcome various obstacles that would be difficult on their own to overcome. Among these obstacles, we can cite the ineffective communication that can prevent the evolution of the process.

Redirect the negotiations towards the desired goal, ease the tensions created by the original conflict situation, summarize the reciprocal positions and identify the common interests, etc. all require a communication technique on the part of the mediator that focuses on the element of persuasion[8]. The effectiveness of persuasion will depend on the way in which the communication of the mediator (subject of persuasion) is transmitted to the parties – namely, whether the direct and indirect persuasive attempts undertaken will have an impact or even an influence on the future behaviour of the parties[9].

Taking into account the persuasive aspect is therefore of paramount importance during a mediation process. Persuasive communication must begin with the mediator, and the panel of tools available to him is very varied, differing according to the type of mediation envisaged and according to his character.

Consideration of the emotional aspect

A conflictual relationship is made up of legal, psychological, and emotional dimensions. This last dimension must be the subject of attentive intervention on the part of the mediator. Indeed, allowing the parties to express their emotions while avoiding a negative emotional dynamic will allow them to cross the course easily towards the stage of finding a solution[10]. It is during this transition that the emotional intelligence of the mediator must make a difference. Going from emotion to reason will constitute a rigid base for the installation of a collaborative climate; allowing the mediator to identify the issues of the conflict, and the parties to focus on their respective interests[11].

The source of the conflict, engendering any emotion, comes from an event that took place in the past. And the quest for the solution to a problem must therefore begin with understanding its trigger. At this stage, listening is analyzed as a necessity on the part of the mediator.

However, detaching the parties from the past in order to orient them towards the future is the second step. It is here that the consideration of the emotional aspect by the mediator must make the difference. By inviting the parties to turn the page, the neutrality[12] and ability of the mediator to control his own emotions are of major interest, constituting an essential factor in the management of the process[13] and the success of the mediation.

Consideration of the cultural aspect

An effective communication strategy requires good management of cultural differences. The mediator will therefore be able to act upstream, before the start of the mediation process, as well as downstream – during the course of the mediation.

Anticipating communication difficulties by taking into account the cultural aspect is done upstream by measuring the cultural gaps between the different parties to the conflict. In this respect, digital technology at the service of mediation amply proves its interest. Indeed, the use of artificial intelligence and algorithms to measure cultural differences will allow the mediator to build a “personalized cultural map” for each dispute with which he will be confronted[14].

Understanding the cultural values of each party induces the anticipation by the mediator of potential behavioural pitfalls, in order to limit the negative impact on the communication between the parties during the course of the process.

Downstream, successful communication is already elusive. This difficulty is accentuated when a multicultural dimension is added to it[15]. With the two main barriers being language and the parties’ attitudes towards verbal and non-verbal communication[16], cultural differences can lead to conflicting interests. Consequently, the mediator must be aware of the need to adopt techniques specific to these cultural issues, and the tools that will help him to navigate them[17] will be, on the one hand, the pre-mediation meetings which will allow for evaluating issues unrelated to the merits of the dispute – such as cultural issues; and on the other hand, caucus sessions allowing to evaluate the cultural understanding of each of the parties towards the other.

[1] See ARISTOTLE, “The Rhetoric of Aristotle”.

[2] J. H. STARK, D. N. FRENKEL, “Changing Minds: The Work of Mediators and Empirical Studies of Persuasion”, Penn Law: Legal scholarship repository, 2013, p. 266.

[3] P-C. LAFOND, “La prise en considération des émotions en médiation : une intervention essentielle et delicate”, Les Cahiers de droit, Volume 61, numéro 4, décembre 2020, p. 937–958.

[4] A. ZARISKI, “Senti alteram partem: Rights, Interest, Passions, and Emotions in Judicial Mediation”, Journal of Arbitration and Mediation, vol. 4, no 2, 2013, p. 1-6.

[5] W. URY, R. FISHER, B. PATTON, “Comment réussir une négociation”, Paris, Seuil, 2006, p. 43-45.

[6] C. MENKEL-MEADOW, “Chronicling the Complexification of Negotiating Theory and Practice”, Negotiation Journal, vol. 25, no 4, 2009, p. 415-416.

[7] K. LUCKE, A. RIGAUT, “Cultural Issues in International Mediation”, p. 4, 2002. https://www.nottingham.ac.uk/research/groups/ctccs/projects/translatingcultures/documents/journals/cultural-issues-mediation.pdf

[8] J. H. STARK, D. N. FRENKEL, op. cit, p. 271.

[9] E. ARONSON, “The Power of Self-Persuasion”, 54 AM. PSYCHOLOGIST 875–84 (1999).

[10] E. FUSTING, “Making the Brain a Friend, not Foe: What Interventionists should Know about Neuroscience”, American Journal of Mediation, vol. 6, 2012, p. 47 – 60.

[11] C. CHICVAK, “Concretizing the Mediator’s Je Ne Sais Quoi: Emotional Intelligence and the Effective Mediator”, American Journal of Mediation, vol. 7, 2013-2014, p. 14.

[12] T. S. JONES, Andrea BODTKER, “Mediating with Heart in Mind: Addressing Emotion in Mediation Practice”, Negotiation Journal, vol. 17, 2001, p. 220.

[13] R. A. DEMAYO, “Practical and Ethical Concerns in Divorce Mediation: Attending to Emotional Factors Affecting Mediator Judgment”, Mediation Quarterly, vol. 13, no 3, 1996, p. 221, 222, 224.

[14] See the empirical study by Geert HOFSTEDE, known as Hofstede Insights.

[15] K. LUCKE, A. RIGAUT, op. cit, p.15.

[16] V. STESIN, “How do cultural differences influence mediation?”, Wolters Kluwer, 21 February 2022.

[17] P. SINGH, “A mediator’s guide for navigating a cross-cultural mediation”, Ex Curia International, 2021, https://excuriainternational.com/2021/06/25/a-mediators-guide-for-navigating-a-cross-cultural-mediation/