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American Bar Association - Defending Liberty, Pursuing Justice

SPRING 2010

Vol. 6, No. 3

LITIGATION

 

Listening as an Effective Tool for Client Representation

When participating in mediation, your goals are to serve your client’s needs, advocate for your client’s best interest, and create a workable, durable solution. To reach these goals, you must listen attentively to all participants (your client, the opposing party and counsel, and the mediator) throughout the mediation process.

Nevertheless, the importance of building good listening skills is often overlooked, despite the fact that you spend approximately 80 percent of your waking hours communicating. 1 Specifically, 45 percent of your life is spent listening, almost twice the amount of time you spend writing (9%) and reading (16%) combined. 2 If almost half of our lives is spent listening, why is it that listening is not a focal point of legal training and professional development? In fact, despite the necessity of these skills, less than 2% of the population has received formal education in the development of listening skills. 3 This absence of training and skill development can hinder your ability to successfully meet your client’s needs and engage in the mediation process.

Do not despair. Lawyers can make a personal commitment and undertake deliberate efforts to become a better listener. Developing these skills to listen effectively is the key to a successful mediation, to frame the issues, keep your client informed, and advocate your client’s position. The following paragraphs will provide an overview of the art of listening; explore various listening techniques; offer guidance for enhancing your listening skills; and furnish tips for creating a climate for a fruitful mediation.

Hearing Versus Listening
You may sometimes use the words “listening” and “hearing” interchangeably; however, these words have very different meanings. For example, you may tell a client or opposing counsel that you heard their concerns, but did you truly listen?

Listening differs greatly from hearing, which is characterized as an innate sensory function. The challenge is moving from the sensory function of hearing to the cognitive function of listening, particularly because studies have shown that we remember only a nominal portion of what we hear, ranging from 25 to 50 percent. 4 As a practical matter, this means that when someone, whether it is a client, mediator, opposing counsel, or colleague, is speaking to you for 5 minutes, you remember only 1.5–2.5 minutes of what was said, that is, unless you also are listening. Plenty of information thus can be lost during the nonlistening, remembering period of time. Accordingly, moving from the capacity of hearing to listening can increase your capability to interpret and retain information.

In contrast to hearing, listening means to be fully engaged and wholly present by making a conscious effort to interpret and analyze information being spoken. Listening requires you constantly to be attentive as another person is speaking and nonverbally communicating.

In mediation in particular, your ability effectively to listen to all participants can strengthen and support the mediation process. Listening occurs as early as your initial intake interview and continues until the conclusion of the mediation. For instance, there is critical information for you to learn and understand about your client’s goals and needs during premediation client meetings. In turn, listening closely to the opposing party’s statements can strengthen your ability to negotiate an agreement.

Methods for Enhancing Your Listening Skills
There are a number of different listening techniques that can be utilized at various stages of client representation and in preparation for mediation. To name a few, these include reflective listening, clarifying listening, and active listening.

Reflective listening may be helpful when aiding your client in identifying his/her legal interests that will be explored during the mediation. This also will aid you in gaining a deeper understanding of the client’s position and the legal issues involved. Reflective listening requires being respectful to the person communicating; actively listening and understanding; letting the other person know that you heard and understood what they said; and engaging in a verbal exchange. Thus, the implementation of reflective listening skills fosters client-centered representation that focuses on gaining a deeper understanding of the client’s objectives and helping the client address the root cause of the legal issue.

You should ask nonleading questions and be encouraging. Examples of statements evidencing reflective listening include:

  • You feel that you were treated unfairly by the opposing party: how so?
  • You felt like . . .
  • Your needs can be addressed by . . .

Exploring these questions early on will aid you in distinguishing between your client’s position and his or her interests and needs. Your client’s position is what he or she wants to obtain during the mediation or negotiation process. Your client’s interests, on the other hand, are what underlie the position and explain why he or she has chosen a given position. For instance, your client’s position may be that an injustice has occurred and someone needs to be held responsible. Your client’s interests, on the other hand, may be to remedy the injustice by preventing future wrongdoing.

It is important for you to identify and categorize your client’s positions and interests separately. Initially, your client may have a very specific position or desired outcome in mind of how the issues should be resolved. 5 As you engage in reflective listening, however, you can then identify the client’s needs and brainstorm a variety of different ways to resolve the conflict,that is, different positions and outcomes, in preparation for the mediation process that equally would satisfy your clients interests. Remember, you are in the process of rapport-building while also gathering crucial facts and information.

Clarifying listening also may be helpful in learning more about the context of your client’s legal issues and your client’s goals for mediation. Clarifying listening is used to obtain additional facts and to help another person to discover the multifaceted nature of a conflict. For instance, you may ask your client:

  • Clarify the legal matter?
  • Do you mean x when you say . . .?

Clarifying listening also will be helpful when engaging in dialogue with the opposing party at the mediation to help you better understand the opposing party’s position and interests. During this phase, you may need to use clarifying statements such as: When you state x, what did you mean?

An additional listening skill that can be used to discover your client’s goals and the relevant issues in the mediation process is active listening. This listening technique encourages the client to focus his or her attention on experiences and feelings related to the dispute. As you reiterate statements and ask questions, the client will listen to his or her own objectives being restated. This process will aid the client in addressing personal feelings and emotions related to the conflict. In turn, active listening during client counseling will aid in obtaining full disclosure of relevant information, engaging the client in the decision-making process, and achieving overall client satisfaction.

Additionally, the active listening technique also is reflected in your body language and expressions. You can demonstrate active listening by nodding or acknowledging that you are listening by stating: “uh-huh.” During the mediation process, it is important to demonstrate that you are engaged in the process. Your client may need the reassurance that your presence and commitment to the case will provide. This especially may be relevant during the framing of issues and agreement building stages of mediation.

Listening Tips
As you explore myriad listening techniques and integrate them into your daily practice, it also is important to incorporate statements into your vocabulary that will help you become a reflective, active, and clarifying listener. A simple guide for statements to use when listening attentively is outlined in the Barkai Chorus. Such statements include:

  • Tell me more about . . .
  • What do you mean by that?
  • Can you put that in other words?
  • How do you feel about that?
  • What do you mean by . . .?
  • Can you be more specific?
  • How so?
  • In what way?
  • That’s helpful, keep going.
  • Wait. Let me be sure I understand correctly: you’re saying . . .

The Benefits of Good Listening Skills
In any legal representation, your client must feel assured that you understand the context of the legal issue and will zealously advocate on his or her behalf. In turn, you can build your client’s confidence in your legal representation not only by communicating effectively, but also by demonstrating your attentiveness to his or her needs by listening carefully. Specifically, by improving your listening skills, you will also be able to more effectively:

  • Establish rapport with your client. It is important for your client to know that you have not just heard his/her statements but that you also are listening. Once your client knows you are listening, you can build your client’s trust and faith in you to execute the best legal strategy.
  • Develop a strategy before entering mediation. In preparing for mediation, you should establish your strategy and course of action. You can accomplish this goal by considering the following questions: How will you address your client’s needs? What information will you provide to the mediator in advance of the mediation? What is your client’s ideal outcome? By addressing these questions, you can serve your client’s interests and successfully advocate achieving your client’s goals.
  • Explain your client’s position and interests, and negotiate a satisfactory settlement accordingly. Your ability to explain your client’s desired outcome of the mediation is essential. You need to be able to explain why this process is important to your client and advocate for the best plan to minister to your client’s needs.
  • State your client’s interests clearly during opening, closing, and caucus. You should be able to clearly articulate your client’s interests from when the process begins until it concludes. In the beginning, you will be advocating for your client’s interests based upon your earlier meetings. Later on in the process, however, you may find that these interests have evolved or changed. By listening to your client throughout the process, you will be able to articulate the client’s needs in a meaningful way.
  • Establish credibility with the mediator. Being a good listener also will help you establish credibility with the mediator. As a result, the mediator will perceive from the onset that you are prepared for the process and ready to engage in creating a solution to the conflict.  

Significantly, although the mediator is neutral, he or she may form an opinion about the apparent strengths and weaknesses of the underlying case. By listening to the mediator, and paying attention for these cues, you will be in a better position to provide any documentation or support that may further your client’s position.

  • Discover the compromise that is acceptable to the opposing party. Additionally, listening effectively also will help you to “read between the lines.” You should ponder questions, such as: What is it that the opposing party is not saying? What is his or her body language when speaking? What is the tone and demeanor of the opposing party? In this manner, while listening, you can ascertain important information related to the opposing party’s interests and position.

Conclusion
Legal training provides one with the legal skills for, inter alia, oral advocacy, fact investigation, and legal research and writing. However, the art of listening is often overlooked. The ability to listen is a key component of an attorney’s success in building a quality attorney/client relationship and managing the mediation process. You can become a better listener by making the commitment today to draw upon a variety of different listening techniques in your next mediation. Do not forget the well-known adage: “To listen well is as powerful a means of communication and influence as to talk well” (John Marshall).

Notes
1. Adapted from James G. Patterson, Better Listening and Personal Success.
2. Texas A and M University, Listening Skills, http://scs.tamu.edu/selfhelp/elibrary/listening_skills.asp.
3. RFB &D, Listening Essential for Learning, http://www.rfbd.org/ListeningTips_R1%208-07.pdf.
4. MindTools, Active Listening-Improve Listening Skills with Mind Tools, http://www.mindtools.com/CommSkll/ActiveListening.htm.
5. Roger Fisher, William Ury, and Bruce Patton, Getting to Yes, Second Edition (1992).

Listening as an Effective Tool for Client Representation, by Artika Tyner, 2009, Conflict Management, 13:2, pp. 6–8. ©2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Artika Tyner is a court-certified mediator and clinic law fellow at the University of St. Thomas School of Law. Ms. Tyner can be reached at artyner@stthomas.edu.

© Copyright 2010, American Bar Association.