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The importance and challenge of active

listening in mediation
Tony Bogdanoski*
Before mediators can effectively help the parties resolve their disputes,
mediators themselves must first understand and recognise the different
needs and interests of the disputing parties, which requires actively listening
to the parties. However, active listening – arguably the purest form of listening
– is not an easy skill to acquire and apply in practice. This article explores the
importance and examines some of the inherent challenges associated with
actively listening to the parties in mediation.
“They listen with their entire presence and hear what isn’t said.” This is, of course, one of the most
important skills required for allowing effective mediation to take place. Without really listening, both to
what is and is not being said, a mediator may never identify the real issues.1

INTRODUCTION
In order to effectively listen to the parties in mediation, mediators are not only required to listen to the
factual content2 of the dispute between the parties. Mediators must also read “between the lines”3 for
what is being communicated between the disputants on an emotional level. In essence, this involves
mediators listening to “what isn’t said”4 by the parties and listening for “unacknowledged emotions
[which] interfere with the ability of the parties to move towards the negotiation stage of the mediation
process”.5 By making them aware of their underlying needs and interests, and the reasons why they
hold the particular positions which are causing them to be in conflict with one other,6 mediators can
employ their listening skills in a way that encourages the disputants to communicate with one another
by empowering them to know more about their dispute. However, such active listening skills are not
easily or quickly acquired and are techniques that mediators progressively develop through reflective
learning and practice. This article explores the importance and some of the inherent challenges
associated with active listening in mediation.

LISTENING TO THE PARTIES IN MEDIATION


As Mayer observes, a mediator “must be an excellent listener” because “almost everything that a
facilitative mediator does is about facilitating communication”.7 In order to effectively facilitate the
negotiations that take place between the disputants, “the mediator is always listening for the interests
or needs that are motivating parties and seeking to put these on the table in a constructive way”.8
*
BA in Communications (Journalism), LLB (Hons) (UTS), LLM (Syd). This article was part of a Master of Laws degree at the
University of Sydney. The author wishes to thank Professor Hilary Astor for reviewing an earlier draft of this article and Sue
Bogdanoska for her research assistance. The author may be contacted at tbog3523@uni.sydney.edu.au.
1
Grant S, “The Importance of Lateral Thinking in Mediation” (2001) 12 ADRJ 77 at 81, citing Wade J, “What Skills and
Attributes Do Experienced Mediators Possess?” (1999) 2(5) ADR Bulletin 50.
2
Boulle L, Mediation: Skills and Techniques (Butterworths, 2001) pp 126-127.
3
Boulle, n 2.
4
Wade, n 1.
5
Fisher L and Brandon M, Mediating With Families: Making the Difference (Prentice Hall, Sydney, 2002) p 135.
6
A key focus of principled negotiation, upon which facilitative mediation is based, involves focusing on interests, not positions:
see Fisher R and Ury W, Getting to Yes: Negotiating an Agreement Without Giving In (Penguin Books, New York, 1981), Ch 3.
7
Mayer B, “Facilitative Mediation” in Folberg J, Milne A and Salem P (eds), Divorce and Family Mediation: Models,
Techniques and Applications (The Guilford Press, 2004) p 45.
8
Mayer, n 7, p 44.

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The importance and challenge of active listening in mediation

Thus, mediators “must listen effectively before they can get the parties to listen to each other”9
because they must first understand the different interests and needs of the parties before the mediator
can facilitate the process.10
Mediators are called upon to help define and clarify the issues in dispute between the parties. A
party who has no definitional power11 can acquire the ability to define their problem with the help of
a mediator who attentively listens to both the factual and emotional content of their dispute. As Mayer
has noted elsewhere, “the framing of a conflict is often the key to how it is resolved”12 and definitional
reframing is a central focus of the mediator’s role in facilitating the negotiations. The mediator must
therefore be attentively alert to hurdles in the negotiations and reframe these obstacles as “mutual
problem(s) to be mutually solved”.13 These impasses can be both spoken and unspoken and, in order
to listen well, mediators must not only attend to the spoken words of the parties but also to “the
silence between the words”.14

ACTIVE AND PASSIVE LISTENING


When mediators speak of “listening”, they talk about “active listening” as opposed to “passive
listening”.15 Passive listening “occurs when the mediator listens in silence to what the parties are
saying and responds in a passive way”16 through the use of non-committal acknowledgments (eg “Oh”
and “I see”) and open-ended questions which allows the parties to continue their narrative while the
mediator listens on.17 Passive listening skills are applied throughout the entirety of the mediation
process18 and are employed by mediators to not only give the parties the opportunity to speak and tell
their stories, but to enable the mediator to understand the issues between the parties.
At the core of human experience and communication is indeed a “deep desire to feel heard, and to
know that others care enough to listen”.19 Active listening involves “focusing on the words, the pitch
and tone, the body language and other non-verbal information”20 and goes further than passive
listening because it requires the mediator to reflect back to the parties, in paraphrased form, the
emotions and feelings expressed in their narratives, whether these feelings are made explicitly known
by the parties or not.21 This acknowledgment of feelings and paraphrasing by the mediator then “lets
the parties know they’ve been heard” and understood by the mediator, thus enabling the parties to
instil trust in the mediator to facilitate their negotiations.22 A rapport is thereby developed by the
9
Boulle, n 2, p 126.
10
Arnold C and Clark A, “Assessing Listening Behaviors of Mediators in Low and High Coorientational Accuracy Settings”
(1996) 10(1) International Journal of Listening 65 at 65-66.
11
Mayer B, The Dynamics of Conflict Resolution: A Practitioner’s Guide (Jossey-Bass, San Francisco, 2000) p 58.
12
Mayer, n 11.
13
Mayer, n 11, p 135.
14
Isaacs W, Dialogue and the Art of Thinking Together (Doubleday, 1999) p 86.
15
Charlton R and Dewdney M, The Mediator’s Handbook (2nd ed, Lawbook Co, 2004) pp 193-197; Boulle, n 2, p 127;
Sourdin T, Alternative Dispute Resolution (3rd ed, Lawbook Co, 2008) p 136; Binder D and Price C, Legal Interviewing and
Counselling: A Client-centred Approach (West Publishing Co, St Paul, 1977) pp 23-36.
16
Charlton and Dewdney, n 15, p 193.
17
Binder and Price, n 15, pp 23-24.
18
Charlton and Dewdney, n 15, p 194.
19
Stone D, Patton B and Heen S, Diffıcult Conversations: How to Discuss What Matters Most (Penguin Books, New York,
2000) p 163.
20
Sourdin, n 15, p 135. See also Atwater E, “I Hear You” in Trachte-Huber EW and Huber S (eds), Mediation and Negotiation:
Reaching Agreement in Law and Business (LexisNexis, 1998) pp 31-33.
21
Louis D, “Challenges in Multiparty Environmental Mediation” (1999) 19 Journal of the National Association of
Administrative Law Judges 77 at 95.
22
Stone, Patton and Heen, n 19, p 178.

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Bogdanoski

mediator “actively listening while demonstrating empathy” with each party’s story.23 According to
Moore,24 active listening by the mediator assists the parties because:
• it assures the speaker that he or she has indeed been heard;
• it allows the speaker and listener to verify that the precise meaning of the message has been
heard;
• it demonstrates the acceptability of expressing emotions;
• it allows the speaker to explore his or her emotions about a subject, and to clarify what he or she
really feels and why;
• it may also perform the physiological function of encouraging release of tension through
expressing emotion.
The extent to which the mediator applies an active listening approach to the mediation process,
however, will vary on the style or styles of mediation employed and the particular context in which the
dispute arises as well as the outcome desired by the parties. Mediation styles are said to fall along a
continuum of bargaining, on the one hand, and therapy, on the other hand.25 While active listening is
very important in facilitative mediation, it is central to narrative and transformative mediation models
which provide a specifically interventionist role for the mediator. Mediators applying transformative
mediation techniques and principles will focus from the outset “on listening and observing for
indications of weakness and self-absorption because these are the points of opportunity for
interactional transformation”.26 The use of reframing is central to transforming the positions of the
parties because it represents “an opportunity for an empowerment shift toward greater strength”.27
Active listening is also essential in narrative mediation because the mediator’s role here is to assist the
parties in the deconstruction of their conflict stories to reveal (or externalise) those particular meanings
or constructions which have contributed towards the development of their conflict.28 The parties, with
the active participation of the mediator, concentrate on destabilising narratives of mutual blame and
accusation which emerge from these stories.29 Both the parties and the narrative mediator then work
towards the reconstruction of a mutually preferred joint narrative which moves the parties towards a
resolution of their dispute by helping them transcend the “grip of the conflict story”.30

CHALLENGES MEDIATORS FACE IN LEARNING TO ACTIVELY LISTEN


The need to appear genuinely interested and authentic to the parties
As Charlton and Dewdney assert, actively listening “involves actually being interested and alert”.31
They further warn:
Mediators who are not actually listening will not be able to summarise accurately, and most importantly,
will not pick up the little gems and opportunities for options which emerge during the parties’
cross-table dialogue.32

23
Brandon M and Robertson L, Conflict and Dispute Resolution: A Guide for Practice (Oxford University Press, 2008) p 149,
citing Goldberg S, “The Secrets of Successful Mediators” (2005) 21(3) Negotiation Journal 365.
24
Moore C, The Mediation Process: Practical Strategies for Resolving Conflict (3rd ed, Jossey-Bass, 2003) p 176.
25
Silbey S and Merry S, “Mediator Settlement Strategies” (1986) 8(1) Law and Policy 7. See also Kelly J, “Mediation and
Psychotherapy: Distinguishing the Differences” (1983) 1(1) Mediation Quarterly 33; Fisher and Brandon, n 5.
26
Baruch Bush R and Ganong Pope S, “Transformative Mediation: Changing the Quality of Family Conflict Interaction” in
Folberg, Milne and Salem, n 7, p 61.
27
Baruch Bush and Ganong Pope, n 26, pp 61-62. See also Baruch Bush R and Folger J, The Promise of Mediation: The
Transformative Approach to Conflict (Jossey-Bass, San Francisco, 1994) pp 84-94.
28
Cobb S, “Empowerment and Mediation: A Narrative Perspective” (1993) 9(3) Negotiation Journal 245 at 250.
29
Winslade J, Monk G and Cotter A, “A Narrative Approach to the Practice of Mediation” (1998) 14(1) Negotiation Journal 21
at 26-27, 35-36.
30
Winslade, Monk and Cotter, n 29.
31
Charlton and Dewdney, n 15, p 195.
32
Charlton and Dewdney, n 15, p 195.

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The importance and challenge of active listening in mediation

Golen has identified six barrier factors to effective listening: laziness, close-mindedness, being
opinionated, insincerity, boredom, and inattentiveness.33 In order to avoid looking insincere or
appearing to merely parrot what the parties have said or felt, the mediator should also go further and
strive to empathise with the parties by employing a genuinely curious approach because “listening is
only powerful and effective if it is authentic”.34
Acknowledgment of feelings and emotions and giving the parties the
opportunity to speak and be heard
It can be a barrier to listening if the mediator either asks a question and then answers it for a party,
finishes his or her sentence, or talks over either party, or cuts a party off while he or she is speaking.35
However, the reality is that time will dictate the ability for the parties to canvass all they would like to
in their negotiations with one another, but the mediator would have told them at the beginning of the
mediation that more than one session can be arranged if required. Some parties, particularly those
experiencing grief or loss (eg the “deserted” party in a divorce or separation who did not see the end
of the relationship “coming”) must be given the opportunity to express their feelings and this will
require the mediator to listen to them, perhaps over more than one mediation session. This is contrary
to the counterproductive view of “conventional wisdom that emotions have no place at the bargaining
table”.36 Mediators should not fear “opening the door to expressing grief” since it cannot be avoided
nor can it be separated from the “legal issues”.37
It should be understood that the acknowledgement of feelings by the mediator through nodding,
smiling or saying “yes” must not be construed by the parties as the mediator agreeing with the content
of what the party said.38 This is something the mediator should make clear to the parties at the outset
of the mediation as indicating understanding or acknowledgment on the part of the mediator rather
than agreement,39 because the mediator’s selective facilitation and use of particular body language can
otherwise have an encouraging or inhibiting impact on the parties’ story-telling.40 It is for this reason
– ie that the other side may feel the mediator is being biased – that many mediators advise against
mediators “over-identifying” with a party’s story by using phrases such as “that’s very interesting” or
“how awful for you”.41 Put another way:
Active listening in mediation will tend to endear the mediator to the speaking party, but may be
simultaneously counter-productive with the other non-speaking party who may be wondering whether
the mediator is favouring the speaking party.42
Restraining the mediator’s inner voices and prejudices
A challenge facing every mediator to varying degrees is their need to focus their total attention on
what the parties in the mediation are saying without getting distracted by their own “inner clamoring”
[sic].43 Clearly, giving the parties the opportunity to speak uninterrupted will have gone in vain if the
33
Golen S, “A Factor Analysis of Barriers to Effective Listening” (1990) 27(1) Journal of Business Communication 25 at 32.
34
Stone, Patton and Heen, n 19, pp 168, 183.
35
Charlton and Dewdney, n 15, p 194.
36
Gray B, “Negotiating With Your Nemesis” (2003) Negotiation Journal 299 at 301, citing Fisher and Ury, n 6, p 62. Further,
see Foong D, “Emotions in Negotiation” (2007) 18 ADRJ 186.
37
See Evans M and Tyler Evans M, “Aspects of Grief in Conflict: Re-visioning Response to Dispute” (2002) 20(1) Conflict
Resolution Quarterly 83 at 94-95.
38
Stone, Patton and Heen, n 19 at 182-183.
39
Sourdin, n 15, p 147; Charlton and Dewdney, n 15, p 194.
40
See Dingwall R and Greatbatch D, “Who is in Charge? Rhetoric and Evidence in the Study of Mediation” (1993) Journal of
Social Welfare and Family Law 367.
41
Charlton and Dewdney, n 15, p 194.
42
Louis, n 21 at 95.
43
Isaacs, n 14, p 83. See also Doherty N and Guyler M, The Essential Guide to Workplace Mediation and Conflict Resolution
(Kogan Page, 2008) p 44.

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mediator did not actually listen to what the parties said because they were mentally preoccupied by
something else.44 Mediators can therefore improve their listening skills by actively recognising and
learning to “embrace, accept and gradually let go”45 of these internal voices which are competing with
what the parties are saying in the mediation. An inability to effectively manage these internal voices
certainly means “you’re at best only half listening to the other person”46 but it will require much
practice in order for the mediator to reach a point where their inner voices are drowned out by the
external voices of the disputing parties.
Perhaps even more challenging for the ability of mediators to effectively listen to the parties is the
mediator’s own predispositions and reactions to particular people and narratives, which may cause
them to “listen” to the parties and their stories in a way that reinforces their prejudices.47 Active
listening is “not done in a neutral and non-evaluative way”48 and mediators, through their use of
reframing, unavoidably become “active coauthor[s] in the construction of dispute narratives”,49 rather
than being “neutral facilitator[s] of conversations”.50 In reframing and reflecting back to the parties,
mediators can influence the ultimate outcome of the session by emphasising and ignoring particular
issues,51 thereby tactically using reframing to “transform the meaning of the disputant’s utterances”52
closer to the meaning or interpretation preferred by the mediator. Mediators must therefore be
conscious of their own vantage points and the way in which this impacts upon their ability to listen
effectively and ultimately keep their views separate from the stories being told by the parties.53 It is
true that people generally confide information, particularly if it is sensitive or morally controversial,
“only in the presence of someone who exhibits non-judgmental understanding”.54
Power relations between the parties and cultural awareness
Mediators make assessments at intake as to whether or not disputants should be attending mediation
on the basis of the parties’ capacity and willingness to negotiate with one another.55 Mediators can
only be cognisant of the diverse and continually fluctuating power relations between the parties
through actively listening to them. As Moore observes:
Mediators can use active listening in caucuses and joint sessions to assess if expressions of emotions is
a negotiation tactic to influence another party to make concessions … or if it is a genuine expression of
feelings. The more the mediator and disputant interact, the more difficult it is for disputants to maintain
insincere emotional postures.56
Effective active listening requires mediators to be cognisant of the stories and narratives being
told by the parties in the negotiations. If these stories do not resonate in the dominant culture,57 then
it may be that the mediator may not understand where a particular party is coming from and therefore
44
Doherty and Guyler, n 43, p 44.
45
Isaacs, n 14, p 83; Stone, Patton and Heen, n 19, pp 168-171.
46
Stone, Patton and Heen, n 19, p 168.
47
Isaacs, n 14, pp 92-94.
48
Blanciak P, “Reframing: The Essence of Mediation” (2002) (Aug) Mediate.com, http://www.mediate.com/articles/
blanciak.cfm viewed 27 May 2009.
49
Phillips B, “Reformulating Dispute Narratives Through Active Listening” (1999) 17(2) Mediation Quarterly 161 at 165.
50
Phillips, n 49.
51
Phillips, n 49 at 168.
52
Phillips, n 49 at 169.
53
Isaacs, n 14, pp 98-100; 108-109. See also Astor H, “Mediator Neutrality: Making Sense of Theory and Practice” (2007)
16(2) Social and Legal Studies 221 at 230.
54
Binder and Price, n 15, p 35.
55
Astor H and Chinkin C, Dispute Resolution in Australia (Butterworths, 2nd ed, 2002) pp 158-60.
56
Moore, n 24.
57
See Cobb S and Rifkin J, “Neutrality as a Discursive Practice: The Construction and Transformation of Narratives in
Community Mediation” (1991) 16(1) Studies in Law Politics and Society 69.

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The importance and challenge of active listening in mediation

fail to give recognition to or understand that party’s particular position in relation to the dispute. It
may be that the mediator will need to strategically intervene in the negotiations between the parties
when the process is becoming inequitable for one of the parties as a result of power imbalances
between the parties.58 However, being aware of differing stories and narratives is a task that mediators
acquire with practice. It is also dependent to a very great extent on the particular life experiences,
values and beliefs of the mediator and the extent to which the mediator is aware of his or her own
biases and prejudices.59 Further, Moore has argued that active listening is a “culture-specific process”
that may be inappropriate and cannot work for all disputants:
Members of cultures that prefer to avoid overt display or discussion of emotions in front of parties with
whom they disagree will resist active listening and may feel that responding to its use will result in loss
of face for themselves or their opponent. Mediators should take care when using active listening in an
indirect-dealing culture or in one that is not comfortable with direct expression of emotions.60
Nevertheless, even in these cultural contexts, mediators should still actively listen to the parties (albeit
separately) and strategically use private sessions to address the parties’ underlying emotional issues as
a means of assisting the parties to move closer to a resolution of their dispute.
CONCLUSION
Active listening is the “purest form of listening”61 in mediation because it enables mediators to hear
what the parties are saying, what is important to them and what the real issues are for them,62 whether
this is spoken or unspoken. The use of role-plays in experiential learning is a particularly useful
mechanism by which active listening skills can be further developed because it encourages a
self-reflective learning process that causes practitioners to improve their skills and address their
particular challenges through being critical about their practices.63 The skill and technique of active
listening will have been learnt and successfully applied if a mediator can get a party to be clearer and
more knowledgeable about the dispute than he or she was before participating in the mediation.64 This
is because entrenched conflict between disputants leads them to become self-absorbed and unable to
see each other’s understanding of the dispute.65 However, active listening remains a mediator skill and
technique which requires “substantial effort to master”66 in view of the substantial barriers to
successful active listening.

58
See Kelly J, “Power Imbalance in Divorce and Interpersonal Mediation: Assessment and Intervention” (1995) 13(2)
Mediation Quarterly 85; Bogdanoski T, “The ‘Neutral’ Mediator’s Perennial Dilemma: To Intervene or Not to Intervene?”
(2009) 9(1) Queensland University of Technology Law and Justice Journal 122.
59
Fisher L, “Working with Gay and Lesbian Partners – Process and Practice Issues” (2004) 15 ADRJ 273 at 273.
60
Moore, n 24, pp 176-177, 205-206.
61
Doherty and Guyler, n 43, p 44.
62
Doherty and Guyler, n 43, p 44.
63
Menkel-Meadow C, “Lawyer Negotiations: Theories and Realities – What We Learn from Mediation” (1993) 56 Modern Law
Review 361 at 378. See also Lan Yuan L, “Developing Role-Plays for Experiential Mediation Learning” (2001) 12 ADRJ 103.
64
Doherty and Guyler, n 43, p 44.
65
Baruch Bush and Folger, n 27.
66
Binder and Price, n 15, p 23.

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