We recently had the joy of visiting with our daughter and son-in-law in Utah. They have five children. All of them are quick, smart, and unafraid.
My wife said she wanted to take our daughter and our oldest granddaughter out for pedicures. I suppose that’s what grandparents do on vacation these days. Taking our oldest granddaughter out for a pedicure would leave our 7 year old granddaughter without a chaperone (or, more accurately, without a babysitter; the other children were already occupied). My wife asked me if I’d like to take our seven year old granddaughter swimming. My response was “Of course!” So my young granddaughter and I both got on our swimsuits and headed to a nearby pool.
We enjoyed swimming, diving, playing games and splashing each other for the better part of an hour. At this point I realized we should be heading home, but I didn’t say anything. I simply grew quiet for a moment; seeing this, my seven year old granddaughter asked me “Do we need to go back now?” How did she pick up on that? I hadn’t said anything about leaving and we were having a great time, but even at her young age she sensed my feelings through nonverbal communication and she spoke to them.
I said “yes – we need to go now.” She then said “Can I do one more thing?” I quickly and easily replied “yes.” Sensing that she had started the negotiations too low, she said “How about five things?” I responded with “If I let you do five things I will be a terrible negotiator.” She then said “How about two?” I said “alright” and that’s what we did.
The negotiated aspects of this interchange didn’t escape me. Even though she is only seven years old, she’s already a skilled negotiator (she’d have to be in order to maintain her turf in a family with five children. She’s the youngest. If she doesn’t stand up for herself, nobody else will). By this young age she has already learned how to successfully perceive nonverbal communication to the point where she was able to discern that I felt it was time to go. Remarkable. And when the negotiations started, she instantly recognized she had started the bidding too low. If she asked to do one more thing and I’d told her “No, we need to leave right now” then she may well have been satisfied with doing only one more thing. In retrospect I can see she was thinking we needed to leave right away and one more thing was all she could hope for. But she totally read me (and my response). When I readily and easily acquiesced to her doing “one more thing,” she intuited (correctly) that I would probably allow her to do more things – which lead to her request to do five more things (clearly at this point she was testing the water).
How does this relate to mediation? We all grow up and realize that lots of things we learned on the playground translate very well into our grown-up situations. As children we cut our teeth on negotiation techniques with siblings, friends, parents and others. Our grown-up techniques get more refined and are usually more complex than our childhood techniques, but many of the dynamics are the same as when we were young.
These days most of my mediations are still done via Zoom, but some are in-person. I find that counsel who have never mediated via Zoom are often quite hesitant to do so (because they are concerned that they may lose out on the non-verbal communication that happens at mediation). But counsel who have used Zoom extensively soon find out that a mediation on a flat panel screen via a computer platform isn’t as sterile as one might think. If the equipment is all in working order, then voices through Zoom are transmitted with near perfect clarity (along with all of the tone, pausing and inflection that accompanies all speech). And if the webcams are working properly then the visual aspect of Zoom is remarkable. A Zoom meeting isn’t exactly like being in a room with someone – but can be very close. As a Zoom mediation progresses the focus on the Zoom mechanics tend to lessen to the point where those mechanics are almost invisible. I find that the Zoom mechanics rarely gets in the way of the mediation process – and I find the success rates of Zoom mediations to be fully interchangeable with in-person mediations. Between cases which tend to resolve at mediation and those that don’t, I see certain trends and factors affecting success – but the Zoom platform doesn’t seem to be one of them.
Whether you are seven years old or seventy, non-verbal communication is going to be key in your mediation and settlement work. Choosing an environment that fosters effective communication, both verbal and non-verbal, is essential to successful mediation. All indications – and lots of experience – shows that suitable environments can be created both with Zoom and in-person mediations.
The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.
Robert B. Jacobs is an attorney, mediator and arbitrator with over 30 years of litigation experience. He mediates business, real estate, construction, personal injury, wrongful death, employment, trust and probate cases. He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell. He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. Since 2018 he has been an update author for the CEB treatise Real Property Remedies and Damages. He is an adjunct law professor at Hastings College of the Law in San Francisco. Reach him at [email protected]