The Art of Successful Communication In Mediation – Part I: Active Listening

The Art of Successful Communication In Mediation – Part I: Active Listening

Preparing for mediation can be an intensive process for both lawyers and clients. Advancing or defending a matter requires exceptionally good research skills to navigate through questions of law, relevant precedents and to establish all pertinent facts.

Even the most thoroughly-prepared lawyer can fail to achieve a client’s objectives or find a satisfactory resolution if he or she is not able to communicate this information effectively. In this four-part blog series, I offer some tips from a mediator’s point of view about how participants can succeed when engaged in a mediation.

First, I’ll offer advice about active and respectful listening. Then I’ll delve into non-verbal communication and what cues from body language can reveal. In the third installment of the series, I’ll explore verbal communication elements such as tone, language style and word choice and discuss how what you think you’re saying may be different from what another person hears. Finally, I’ll note how good story-tellers can command attention and often persuade their audience.


When thinking of the concept of active listening, two quotes immediately spring to mind: one recent and one ancient but both timeless.

The first, Jeffrey Daly of the Metropolitan Museum of Art, once memorably said: “Two monologues do not make a dialogue.” To engage in a constructive conversation, participants must not simply speak to each other; rather, they should speak with one another. In a mediation, there may be a tendency to forget this important element. It’s crucial to remember that talking through a mediator should not be confused for simply talking to a mediator.

Another is “We have one tongue but two ears, we should listen twice as much as we speak.” This is an idea that may be jarring for people who believe that those who speak loudest or most are most likely to be heard. However, volume and quantity do not necessarily equate to quality in speech. Moreover, valuable information could easily be missed if space is not made for other voices to be heard.

Active listening is, of course, more than simply passively “hearing” another person speak. It involves concentrating on the message, giving a speaker full attention, indicating you are interested in what they are saying and demonstrating that you understand (or are at least trying to understand) them.


There are a number of verbal ways to indicate to a speaker that you are actively listening to their message:

  • Ask appropriate questions for clarification once a person has finished speaking.
  • Briefly summarize your understanding of what they have said. This can also be accomplished through reflecting some of their words and phrases to demonstrate attentiveness.
  • In longer conversations or mediations, demonstrate that you remember details from earlier discussions.                             



Even if you are completely silent, there are a number of visual clues that will indicate your interest:

  • Concentrate on the speaker using eye-contact.
  • Avoid distractions such as gazing off into the distance or fiddling with objects (e.g. cell phone, notes, pen).
  • Use smiles or looks of concern to show empathy when possible; avoid body language such as crossed arms, grimaces, or furrowed brows that suggest feelings of hostility or contempt.                                                                             



In addition to being cognizant of your outward actions, keep some things in mind as you listen:

  • Set aside prejudices and preconceived ideas. You may have divergent opinions and strong disagreements with what is being said. However, respectfully listening and approaching a conversation with as much of an open mind as possible establishes mutual trust and encourages additional conversation and potentially positional movement.
  • Formulate a response after a person has finished speaking, not while they are speaking. Momentary pauses to think are not awkward silences. They are evidence of thoughtfulness and deep listening.
  • Avoid interrupting someone who is speaking, even when you vehemently disagree with what is being said or believe you already understand the sentiment. Interruptions suggest a lack of active listening that may prompt a speaker to feel the need to repeat words. 



Active listening skills take time and practice to develop. They can be severely tested in positional bargaining situations where there is conflict or significant assets are on the line. Demonstrating respectful engagement in a conversation, even when there is significant disagreement, is absolutely essential to foster an atmosphere of good/open negotiation. When a person feels you are truly hearing and understanding them, they are much more likely to be open to actively listening to you and working towards a mutually agreeable solution.


Jonathan T. Cooper of Cooper Mediation Inc. is the taller, younger and non-bow-tied mediator with Cooper Mediation Inc. He mediates primarily, but not exclusively, in the area of personal injury and insurance.

Jon can be reached at or at (647) 993-2667. To schedule a mediation with Jon, visit:

Cooper Mediation