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The Closer
A Mediation Newsletter 
February 2014
The Said and the Unsaid
by James Rainwater
Originally, I considered naming this article "Grins, Grimaces, Grunts, and Groans," but I thought that may have been too unusual for a title. The point is this: When we mediate, we communicate – verbally and nonverbally. Though parties and their attorneys do not always speak, they continue to communicate with gestures, body language, and vocalized sounds. And this form of communication is used and perceived by the mediator as well.
Two-thirds of all communication is nonverbal. This communication can be conveyed by eye contact, leaning into or away from the conversation, nodding or shaking the head, smiling or frowning, hemming and hawing, fist-clenching and table-pounding, to name just a few. We have all seen this in our work and in our daily lives. Yet, perhaps, we do not give it much attention.
Certainly, during the general session, conference attendees will exhibit all sorts of nonverbal communication. Clients may cross their arms, counsel may point fingers, and the mediator may even maintain a forced smile. Some of this communication may be unconscious to the participant exhibiting it or flagrantly intentional, for effect. Additionally, this communication continues once the parties proceed to separate caucus.
Though the clients are no longer in the same room with the opposing party, their demeanor can impact the mediator's impression of the negotiation, which can add to further hurdles to settlement. Attorneys should be equally aware of their unspoken behavior. Not only will the mediator observe this, it is quite likely the client will too. Keeping arms folded and body leaning deeply into the chair does not convey a message of open-mindedness and receptiveness to new proposals.
While we are all involuntary users of nonverbal communication, we can train ourselves to be more cognizant of it, as well as realizing its repercussions to those in the conversation. I am not suggesting that we maintain statue-like facades with no hand gestures. However, I do believe that even the slightest facial gesture or roll of the eyes can potentially derail an on-track settlement conference. As professionals, we need to realize that, to the parties, we are constantly communicating with them – verbally and nonverbally.
