Over the last few years, the trend in California has been not to hold joint sessions in mediation but, to conduct the entire mediation using separate sessions so that the adverse parties are never in the same room at the same time. (Sometimes they do not even want to meet or introduce themselves, and say “hello”!) The alleged rationale is that a joint session may make things only worse (I am not sure how- if the parties are already suing each other!) in that each side will state her position, becoming more entrenched and positional by doing so, which upon hearing it, causes the other party to be even more entrenched in her own position. Thus, rather than helping parties find common ground by using a joint session, many feel that it will do the opposite; hardening each party’s belief that she is right and the other party is wrong, if not nuts! (Naïve realism?)
What these parties are missing out on is the ability to read non verbal communication or body language. Albert Mehrabian, a professor Emeritus of Psychology at UCLA, is well known for his studies on non verbal communications. He has determined that the impact of our words make up 7%; the impact of our tone of voice make up 38% and the impact of our body language make up 55% in speaking with others. Other researchers have determined that it takes just one-tenth of a second for another to judge and obtain a first impression of another. (http://en.wikipedia.org/wiki/Nonverbal_communication#Clinical_studies at page 3)
So, quite a lot is missed by negotiating separately. As a recent blog post from the Harvard Law School Program on Negotiation points out, there are at least three advantages to negotiating face to face. (Negotiation Techniques and Body Language- Body Language Negotiation Examples in Real Life— March 30, 2015.)
The first is the ability to mirror or mimic the other party. This usually happens quite subtlety. (For convenience, I will use “Mary” and “Jane” as my parties in dispute.) When Jane sits across from Mary, as Mary speaks, Mary might lean forward. Very discretely, Jane will sit forward. Mary may put her hands on the table; Jane does the same. In short, Jane adopts the exact same body position and gestures, as Mary, following her lead with only a second or two lapse. Soon, the breathing patterns and heart rates of both will be in sync. The trick is not to be obvious. If Jane is successful, Mary without realizing it will find herself feeling comfortable with Jane, connecting with her and finding rapport with and trusting Jane. Consequently, what was once adversial becomes quite a friendly affair.
A second advantage is that Mary and Jane will be able to determine whether they can trust each other. As this blog post points out, “…
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