Ask a room of lawyers which of them is empathetic and watch what happens. A few hands go up slowly. Most people look at the table. Underneath that is an assumption that empathy came issued at birth, and if you didn’t get any, you facilitate paperwork and hope nobody notices.
However, I disagree. I know mediators can develop empathy with training and practice.
Empathy in mediation is a skill.
Like other mediation skills, it can be developed deliberately and strengthened over time.
Feeling Into
Empathy is actually a pretty young word in the English language. It shows up around 1908, when psychologist Edward Titchener needed an English equivalent for the German Einfühlung, which means “in-feeling,” or “feeling into.” He built the English word from the Greek en, meaning “in,” and pathos, meaning “feeling” or “emotion.”
Titchener’s description describes an action. Empathy means moving your attention into another person’s experience and staying there long enough to learn something about their perspective.
John Steinbeck put it plainly: “You can only understand people if you feel them in yourself.”
An empathetic mediator gets into the world a person is experiencing to help them find a pathway to settlement.
Empathy in Mediation Starts With Your Own Reaction
The best signal that you need to work at empathy usually shows up inside you.
You’re listening to someone, and you catch yourself thinking: That makes no sense. He’s being unreasonable. I don’t believe her.
Maybe you just feel uncomfortable with what you’re hearing. This may result in you growing impatient. Your mind might even jump ahead to what you want to say next, or to how you’re going to solve the problem and move the session along.
Pay super-close attention to your own emotional cues. When I notice an emotional reaction in myself, that’s important information. I take it as a cue to be more deliberate about how I’m listening. That’s when I do a little self-inventory. I stop talking or slow down. Instead of jumping ahead, I’ll deliberately go back to asking questions and being curious.
Assume Your First Read May Be Wrong
This is where empathy becomes a skill you can work on rather than a feeling you either have or don’t.
Ask a question. Listen to the answer. Then ask another one.
There’s some Columbo in good mediation. Just when you think you have the picture, there’s value in asking one more thing.
The first answer is often superficial. Stay with the person long enough to get the rest of the story.
Say a father is fighting hard over the holiday schedule. On the surface, the dispute is about who gets Christmas morning.
Stay curious. What makes Christmas morning matter to him? What is he worried will happen? What did Christmas look like in this family before? What does he want his kids to still have?
Several questions in, you may find grief about traditions that are ending, or worry about becoming a smaller presence in his children’s lives.
The point is to be patient and keep digging. Your patience in getting the full story gets you information you were never going to get from just being satisfied with the first answer or demand. As a result, you’ve got more to work with.
That kind of curiosity is an important part of developing empathy in mediation.
Listen for What Nobody Has Said Yet
Feeling into someone’s experience takes attention beyond the words. That takes practice for professionals who may only be trained to track facts, positions, evidence, and analysis. In other words, watch for the non-verbal cues, which sometimes reveal more than the words people say.
For example, pay close attention to the tone of a person’s voice. Did their voice drop or go up? Did the timbre of the voice shift when a particular subject came up?
What about their cadence? Listen to the pace of someone’s speech. Notice when there’s a pregnant pause before an answer, and the subject the person keeps circling back to. Pay attention to the energy in the room, including your own.
Sometimes the most important thing in the conversation is what people don’t say out loud. It is so common for people’s most important motivations to stay buried under the emotion. The trick is to spot what’s hiding underneath.
For example, if someone trembles and their voice catches whenever money comes up, they may be carrying a lot of financial stress. If someone is arguing or getting upset about a parenting schedule, they might be grieving or feeling helpless about time lost with their child. A fight over the house may be about security, or about the end of a dream.
Your genuine curiosity and attention to both verbal and non-verbal expressions can give the real concerns a chance to surface.
Say What You’re Hearing
Once you have a sense of what may be going on, name it. Keep it short.
“That sounds frustrating.”
“This seems really important to you.”
“A lot is going on for you right now.”
Watch the phrasing, because you are working in front of two people. “That sounds like it was really difficult” acknowledges the experience. “You must have been so frustrated with him for doing that” acknowledges the experience and assigns blame, and the other party hears it.
A simple test: Could you offer the equivalent statement to the other side without sounding inconsistent? If not, it probably wasn’t neutral.
From there, you can reframe the need underneath the feeling.
“It sounds like there’s a lot of anxiety around this schedule. Help me understand what you need the schedule to accomplish.”
“I’m hearing how important the house has become in this conversation. What does keeping it represent for you?”
The acknowledgment gets to the underlying emotion. The reframe helps clarify the client’s need.
This combination of acknowledgment and reframing is one way a mediator can turn empathy into something useful during a mediation session.
Don’t be a mind reader!
I’ve seen plenty of mediators get caught up in mind reading. It’s not about magic. Sure, you may have some intuition about what is going on, and that is useful. But intuition always needs to be checked with facts. Rather than assuming you know what someone is thinking, form a hypothesis and test it with some genuine curiosity.
A good mediator might pick up sadness, fear, anger, or uncertainty. That gives you somewhere to look. A really good mediator then takes the next step to clarify.
So you ask and carefully listen. Assume nothing, and stay open to finding out that you might have missed something. Humility and a willingness to be corrected are a huge part of the skill of empathy.
Attention Comes First
For me, empathy starts with attention. In fact, that’s really the whole game. You pay attention with all of your senses, not just your ears. At the risk of sounding like a Jedi Master, listen with your feelings.
I love to talk, and I even enjoy hearing myself talk. (Just ask my wife!) But some of my best moments as a mediator are when I shut up and listen and really observe what’s going on with someone.
Developing empathy in mediation starts there. Pay attention to the person. Pay attention to yourself. Stay curious long enough to learn what is actually going on.
Practicing Empathy in Mediation
Skills like empathy need practice and hard work to develop.
That’s a big part of how we run our 40-Hour Divorce Mediation Training at Weber Dispute Resolution. Participants learn the concepts and then use them in exercises, mock mediations, feedback, and discussion.
Sharpen your skills at Shawn's 40-Hour Divorce Mediation Training.
Shawn’s 40-hour mediation is live on Zoom. We’ll spend 40 hours working with participants on the skills and judgment that make mediation work.
If you want mediation skills you can actually use with people in conflict, we’d be glad to have you join us.