By Steven G. Mehta

One of the fundamental things that a good negotiator and mediator can do during a mediation is to listen well.  When listening, you will often find many great cues to unraveling the reasons for why the other side has a stated position.  –Unfortunately, many litigators make numerous mistakes in failing to listen during a mediation and solely focusing on talking.

Recently I came across an article relating to listening skills in relationships and it identified the 8 ways that people fail to properly listen.  The article was called the The Eight Habits of Lousy Listeners by  MARIE HARTWELL-WALKER, ED.D.  I thought that Ms. Walker’s points are well suited for the mediation and negotiation framework.  Here are her 8 ways.

  1. Lousy listeners are attending to other things when you are speaking. This is commonplace in mediation.  Before the second side’s position or concerns are often expressed, the first side is ignoring the point and working on other things.  One comment made to me in mediation after a joint session was that the plaintiff had felt heard because the other side had put away any Blackberrys and computers and really focused on what she had to say.  On the other hand, you might hear phatic sounds coming from the party not listening.  According to Ms. Walker, “An occasional ‘uh-huh’ is supposed to cue you that, really, they are with you. They’re not — or at least not totally. Their mind is distracted. Chances are they miss important pieces of your message — even if they protest that they don’t.”
  2. Lousy listeners are planning how they will respond even while you are speaking. Many attorneys are guilty of this fault.  Many times in mediation one side or the other is jumping at the bit to make a reply.  It reminds me of trial when the attorney is hearing the answer from the witness, but is really planning the next question.  “They’re ready with a paragraph before you’ve even completed a sentence,” says Ms. Walker.
  3. Lousy listeners steal the ball.   This happens less in mediation, but it does happen.  Here, one side is about to tell a story such as how the incident affected them, and the other side or its attorney will interrupt to explain how bad it has affected their side also; or the other side may comment that it recognizes that this could be distressing, without affording the opportunity to the other side to express that feeling. Such “theft” denies the party their ability to express their feelings.  Sometimes, the party has to say it to simply get it off their chest.
  4. Lousy listeners change the subject before you are ready to do so. In mediation this happens all the time.  One side or the other doesn’t wan t to hear a particular topic and will work to change the topic.  In some sense, each side is jockeying to change the topic to something favorable.

Allowing a party their say can be time consuming – and often in mediation can take up a considerable portion of the mediation time.  But it is an important part of the process.  Without it, many parties are not ready to talk about other topics that will help resolve the case.

  1. 5.     Lousy listeners hurry you along.  “As you talk, they get restless. They might say, “Uh-huh,

Uh-huh, uh-huh” or look at their watch or scan the surroundings or fidget. You run out of interest in communicating with them because they’ve let you know that they’ve run out of patience with listening to you,” says Ms. Walker.

6.   Lousy listeners have lousy nonverbal skills. People don’t realize the amount of non-verbal communication that goes on.  According to one study, 93% of communication is non-verbal.  According to Ms. Walker “Talking to a lousy listener is like talking to a post for all the affirmation you get.”  During many mediations I have heard comments that although one party was claiming to listen, the party believed the non-verbal signals which signaled otherwise.  Make sure that your non-verbal communication matches the verbal message.

7.   Lousy listeners tend to see criticism or blame in the most innocent of discussions. Litigation is often too much about blame and too little about solutions to the problem.  Often you will see parties focusing on the blame and not on what can be done to resolve the problem.  I will often comment that as much as I would, and they would like the litigation to be over tomorrow without doing anything, it won’t happen.  There is no door number three.  There is only door number one and Two:  Settlement or Trial.  Often that helps to focus on the solution and not the blame.

8.   Lousy listeners are quick to offer advice, even when it hasn’t been asked for. Ms. Walker explains that lousy listeners “don’t take the time to listen to the whole story or to offer quiet support. Often they mean well. They really do want to help. But they don’t understand that their help isn’t always helpful; that sometimes what you want is simply to be heard and understood or given a vote of confidence that you can solve your own problems.”

Now that we have identified some of the lousy skills or the lousy listeners, how do you address these issues.  First, listen to the other person properly.  The best way to get someone to listen to you is to listen to them.

Second, don’t interrupt the other side.  Speak only when you are sure that they have finished.  Third if a person is not listening to you, identify the problem.  You might comment about whether the person is pre-occupied.

Fourth, consider taking a break and identifying the reason for a break.  Sometimes if you comment that you are not sure that the other person understands and you would like to take a small break and then resume, it can help the other person have time in which to reflect on whether they have been a good listener.

Fifth, you might ask the other person if they could explain what they understand you to mean.  This could help force them to express your feelings and you can correct them when they have not fully expressed your concerns.

According to Ms. Walker, “you might try asking for change with exquisite tact and in very small doses.”

Good listening skills can change the way a negotiation will go.  Learning what not to do is a good first start in developing those skills.

To learn more about listening skills, you might look at my book at the following www.112ways.com

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