The Art of Successful Communication In Mediation – Part II: Non-Verbal Communication

The Art of Successful Communication In Mediation – Part II: Non-Verbal Communication

Have you ever seen someone stub their toe, wince, grimace, and then proceed to insist that they’re perfectly fine while in obvious agony? There is a lot of truth to the old adage that actions can speak louder than words. Indeed, our non-verbal communication can often reveal a great deal about what we’re feeling or thinking without us having to say anything at all. In this four part series, I cover essential tips for successful communication at mediation. Part I covered active and respectful listening. In this post, I will delve into the mysterious world of non-verbal communication.


Research into various aspects of non-verbal communication by psychologists and communications experts has increased in recent decades. According to writer Kendra Cherry, this expansive category includes body language, eye gaze, gestures, facial expressions, posture, paralinguistics (tone, volume, inflection), touch, proxemics (distance/space between people), appearance and objects/uniforms.

This rich body of research has become over-simplified by our popular culture. Cherry explains that popular media highlights certain areas such as “the over-interpretation of defensive postures, arm-crossing and leg-crossing” while not appreciating the subtlety and fluidity inherent in non-verbal communication.


In a Psychology Today column, Jeff Thompson, who researches non-verbal communication in mediation, suggests keeping in mind three C’s (context, clusters and congruence) when trying to read body language in mediation.

Establishing the context would involve surveying the situation’s environment, the participants’ history and their respective positions/roles. Rather than concentrating on individual movements or gestures that could more easily be misinterpreted, Thompson contends that looking for clusters would be more effective at determining a person’s emotional state and mindset. Finally, if there is not congruence between a person’s words and his or her tone and body language, there may be a need to examine what some non-verbal cues may be revealing.


In many jurisdictions across Canada, mediation is a voluntary step that the participants have agreed to take in the hope of reaching an out-of-court settlement. However, as Vance Cooper of Cooper Mediation Inc. notes in Top 10 Do’s and Don’ts For Effective Mediation, in some Ontario jurisdictions (Toronto, Windsor and Ottawa), it is mandatory prior to the pre-trial conference. Knowing whether the mediation is voluntary or mandatory will help establish the context of the situation. If participants approach mediation with some optimism that a constructive resolution can be found, their non-verbal communication cues would likely signal openness, respect and a willingness to engage in dialogue. If the mediation is mandatory or not given much credence by a participant, non-verbal cues may help the mediator, plaintiff and/or defence counsel read the room and determine if there is potential for constructive discussion and movement between the participants.

Based on years of the popular media’s reporting of research into body language cues, if a participant at mediation has his or her arms crossed, for example, reasonable observers might infer s/he is being defensive or closed to discussion.  What if the participant is simply cold and trying to warm up? If the observer were to use the cluster approach to interpreting non-verbal communication, s/he might look for confirmation in the form of downcast eyes, gestures which are tight to the body, a slouching posture, minimal facial expressions or monotonous responses. (If none of these are present, perhaps they should look at the thermostat!)

Finally, examining whether non-verbal cues link up to the words being spoken – congruence – can help mediators determine whether participants are saying things they truly believe. Thompson gives an example of a person stating they are willing to help review a document and then moving their chair closer to get a better look. He notes that words offering assistance are congruent with the movement.


Experts agree that one-size most certainly does not fit all when it comes to non-verbal communication; individuals have different quirks and habits. A good mediator, plaintiff and/or defence counsel will always be scanning the room for cues to help him/her read the room. Mediation participants should not worry about how every twitch or blink might be interpreted, but instead remember that it’s always best to “say what you mean and to mean what you say” because communication does not begin and end with the words we speak.


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:

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