Published: June 2019
By: Judge Lucy Chernow Brown (Ret.)
Impartial non-judgmental listening. Making sure that attorneys, clients, and all other speakers in court feel they are truly being heard is the single most important judicial skill on which I personally worked to improve every single day of my twenty-four years on the Palm Beach County Circuit bench. From the bench I learned to appreciate in a very real way every litigant’s and lawyer’s need to feel they have been heard, that they have had their “day in court.” When a person speaks in court about something important to them, that person has an immediate need to feel that the authority figure in court, the presiding judge, has attentively listened to what they have to say and has understood and respected them.
Like my colleagues on the bench, my goal was to analyze the facts and the law to find the legally correct resolution to the issues brought before me. And like most of my colleagues during my tenure on the bench (1991 -2014) it never occurred to me that developing impartial and non-judgmental listening skills might impact my own emotional well-being. During those years, legal publications rarely discussed, or even recognized, the increasingly pressing issues in the legal community of depression, stress, anxiety, substance abuse and suicide. Today there is a wealth of information and assistance available to help lawyers and judges deal with these issues in a positive way. Today, the Florida Bar has instituted several important initiatives seeking to improve the emotional well-being of lawyers and judges.
Having now spent the last four and a half years as an alternative dispute resolution neutral, I have pondered the issue: how does mediation training and practice affect the mediator’s well-being? This precise question is addressed in a recent research article in the Conflict Resolution Quarterly. See, Malizia DA, Jameson JK. Hidden in plain view; The impact of mediation on the mediator and implications for conflict resolution education. Conflict Resolution Quarterly. 2018; 1 – 18. https://doi.org/10.1002/crq.21212
This fascinating article reviews and analyzes the relevant empirical research and scholarship, finding a striking correspondence between the skills mediators use while conducting a mediation and the specific brain functions that cultivate emotional well-being, thereby promoting the well-being of the mediator.
Interestingly, the research analyzed in this article demonstrates that the actively attentive listening skills which I found so essential to my work as a judge is the most important starting point in transferring these courtroom skills into those of a successful mediator. In mediation training and in my own experience, active listening is deepened and expanded. It focuses on asking open-ended questions and identifying the disputants’ underlying needs and interests. These skills must be used in conjunction with the mediator’s recognition and consideration of the emotional components of the dispute. On the bench, I learned that even the most sophisticated business clients can become so trapped in the powerful emotions and the personalities involved in their litigation cases that they can completely lose sight of the practical aspects of their case. As a mediator, I learned to use openness, observation, awareness of non-verbal behavior, empathy, paraphrasing, summarizing and patience to help the disputants appraise their own emotions and reflect on their own feelings, perceptions, and actions.
As mediators apply their skills of emotional awareness to understand the parties and to facilitate conflict resolution, Malizia and Jameson found that the mediator’s level of emotional intelligence is thereby increased, and that these same skills positively impact the mediator’s growth in self-understanding and self-acceptance, heightening the mediator’s own emotional well-being.
Supporting the authors’ theory that the practice of mediation has positive effects on the mediator, the authors cite research demonstrating significant benefits found in primary and secondary school peer mediation programs. Malizia and Jameson discuss studies that show students who complete mediation training and act as student mediators experience increased academic success, enhanced social and emotional competence and reduced disciplinary action.
The authors cite studies conducted in the U.S. as well as other countries. For example, two studies from schools in Turkey showed skill development in empathy, anger management, problem-solving and increased self-esteem. The authors conclude that the evidence of positive impacts on student mediators in the K-12 context is clear and substantial. They do acknowledge that there is scant research directly examining the impact of mediation practice on the mediator outside the school context. However, despite the lack of direct evidence in the context of the legal community, the conceptual alignment between the skills mediators use in conducting a mediation and the brain functions known to cultivate emotional well-being as outlined above is powerful and convincing.
My personal experience as a mediator has in fact helped me to expand, deepen and sharpen judicial skills into effective mediation skills. I concur with the compelling analysis and conclusions of the authors as to the positive impact of mediation on the mediator.
PRACTICE TIP: When preparing for mediation, consider setting up a brief confidential telephone conference with your mediator to frankly discuss any known emotional components of the case.
Judge Lucy Chernow Brown (Ret.) served Palm Beach County for twenty-four years as a Circuit Judge, presiding over thousands of complex cases of all types. Since her December, 2014, retirement from the bench, Judge Brown has been actively involved in alternative dispute resolution as a mediator, arbitrator and special magistrate. A Florida Supreme Court certified Civil Circuit Mediator, Judge Brown is a Neutral with JAMS, the international ADR provider. She may be contacted at: email@example.com or (561) 329-1316. For additional ADR tips and resources, go to http://wwwpalmbeachbar.org/adr-2/.