Hearing aids: How listening settles cases

In a recent issue of Foreign Affairs, one of the authors described the political climate in the United States as having two parties, each of which is deaf to the other party’s position. Sounds a lot like what often happens in mediation — two parties with diametrically opposed positions, each deaf to the arguments advanced by the other party. It also made me think about something that a wise lawyer once told me: “The best quality in a lawyer is the ability to listen.” Since listening is one of the keys to the success of the mediation process, perhaps some “hearing aids” might be in order.

Hearing Aid No. 1: Remember that even if you can’t hear the other side’s arguments, the trier of fact might hear them clearly and they may resonate with the decision-maker in the case. It seems easy to forget that there are three “stories” in every litigated dispute: the plaintiff’s story, the defendant’s story, and the story written by the trier of fact. The only story that really matters is the story written by the trier of fact. This creates a risk for those who are tone deaf to the story being told by the opposing party in a lawsuit. While you and your client may be deaf to the story, if the trier of fact hears, understands and appreciates the story, you will lose and your opponent will win. In order to assess the risk of that occurring, you must be open to listening — you may not agree, but you must be able to at least hear and understand what is being said and not metaphorically close your ears.

Hearing Aid No. 2: Don’t let confirmation bias or attribution bias, or other biases plug up your ears. Confirmation bias is the common human tendency to focus on facts and arguments that support positions that we already have — and to resist consideration of countervailing facts and arguments. Attribution bias is a tendency to attribute bad motives to others when in fact the conduct of the other person may have resulted from something else entirely. An example would be telling the mediator that the late arrival of the opponent at the meditation is a result of the opponent’s disrespect for the mediation process when in fact the opponent merely had a flat tire. The relationship of confirmation bias to “deafness” cannot be overstated. The tendency of a party to focus only on facts and arguments that support your position is so powerful and so seductive that it can literally make it impossible for you to hear what the other side is saying. This happens in large measure because it feels reassuring to return to supporting facts and arguments and it’s uncomfortable to grapple with opposing facts and arguments. Simply speaking, when something supports what we believe, we like it and we are attracted to it. When it contradicts it, we want to “turn it off.” But in litigated matters, neither party has an “on-off” switch for the trier of fact. Since the trier of fact is going to hear all the arguments, including those that contradict what one party might already believe, it’s critical to hear those arguments and understand them.

Hearing Aid No. 3: Practice active listening. There’s a huge difference between listening and active listening. In a typical “listening” scenario, the party who is listening actually hears little of what the other party is saying and understands and comprehends even less. There are several reasons. First, the “listener” is usually distracted. Second, the “listener” is typically concentrating more on what he or she wishes to say in response than on what is being said in the first place. Active listening produces a different result. In active listening, the person who is listening to what is being said must focus intently on the words, tone, body language and other forms of non-verbal communication and formulate a response that engages the speaker. That response is likely not a “counter” to what the other person is saying — in active listening, the response should be an encouragement to the speaker to say more. This is done in a variety of ways. One is to listen carefully and to repeat the last two or three words that the other person has just said. Another is to summarize the thought that was just expressed: “It sounds like you are saying that this particular letter might establish that the plaintiff admitted she had no real injuries.” Or: “If I’m understanding you, this letter seems really important — tell my more about why you think it’s important.” A third technique is to acknowledge the emotional content of the communication. The listener might say to the speaker: “You sound really upset.” The speaker will usually respond by saying something like: “I am upset. I’m very upset.” The listener might say: “Tell me more about why you are upset.” In making these comments, I recognize that in nearly all mediations the opposing counsel is not speaking directly with one another. Instead, they are receiving the “story” from the Mediator. The point, however, is this: even when hearing the story from the mediator, if you listen actively, you will actually hear the story. If not, and if you merely focus on reiterating the points that you feel are important to your own story, you will miss the story and you might just hear an uncomfortable final chapter at the end of the trial.

Hearing Aid No. 3: Be aware of your own dual role — you are both advocate and analyst. Of course it’s your job to advocate for your client’s position. That is what you are hired to do and that is part of the adversary system. But to succeed in reaching a resolution you must also take on the role of analyst. You must listen to and analyze the points that are being made to you through briefs that you may have received or information that you are receiving from the mediator. Mediators (especially those that are evaluative) are themselves, risk analysts. They help the parties analyze and manage risk by providing a neutral evaluation of the issues, both factual and legal. If you view your role as limited to that of advocate, you are preventing yourself from analyzing the risk. If you cannot analyze risk, you cannot resolve the case and responsibly advise your client. If you cannot hear what the other party is saying, you cannot analyze the merits of the positions that are being expressed.

Hearing Aid No. 4: Be open to the possibility that you might learn something important. Somebody once said: “My mind is made up, don’t confuse me with the facts.” (Roy S. Durstine, the advertising specialist, may have been the originator of this line circa 1945.) Your mind might be made up, but it’s quite likely that there some additional facts that you might want to hear. A few examples from recent mediations: Unknown to the lawyer representing a real estate agent accused of concealing a non-permitted room addition, the agent had represented the buyer of the house five years earlier and had signed off on receiving disclosures of the unpermitted room addition — the very issue that was concealed 5 years later when the same agent represented the seller (former buyer). In an action for damages for a defectively built food processing facility where a main emphasis of the plaintiff was a claim that even small amounts of rust were unacceptable, the defense had photographs of other equipment, not manufactured by them, immediately adjacent to their manufactured equipment that had significantly more rust. These are just two examples of case-changing information that was provided at mediation.

Hearing Aid No. 5: Leave your ego at the door. It’s rare for anyone to be right about everything all the time. Be open to the idea that you might not be 100 percent “right” about the case and be willing to listen to facts and arguments that might cause you to re-evaluate your case and reconsider your risks.

Hearing Aid No. 6: Tell your client to listen. The following phrase, when spoken by a lawyer to a client can often be powerfully effective in helping to reach a settlement: “We need to listen to what the mediator is saying.”