PBCBA BAR BULLETINS pbcba_bulletin_June 2019 | Page 5

ADR C o r n e r
Positive Effects of Mediation on the Mediator:
How Listening Skills Help
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
PBCBA BAR BULLETIN
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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: lbrown@jamsadr.
com or [phone]. For additional
ADR tips and resources, go to http://
wwwpalmbeachbar.org/adr-2/.