The first basic skill in any form of mediation training is proactive listening. Proactive listening is listening with a purpose – to completely listen to what a speaker is expressing, both explicitly and implicitly.

There are five aspects to proactive listening:

• Listening for content (the words being spoken);
• Listening for body language (facial expressions, gaze, posture, movement, involuntary behaviours);
• Listening for emotions (what is the speaker feeling? For example, is it coming from a place of anger, frustration or despair?);
• Listening for values (is there an underlying theme driving the opinions, behaviour and concerns of the speaker?); and
• Listening for spirit (the tempo, tone of voice, intensity or volume of the speaker).

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Tip 2 – Have Empathy

The purpose of proactively listening is to enable in-house counsel to empathise with the speaker.

This serves three purposes:

• To connect with the speaker – to show the speaker that what is being said is important to the listener – this will help to build a sense of trust and rapport;

• To give in-house all the information they need in order to effectively facilitate the discussion; and

• To demonstrate to the speaker that they have heard, listened and understood what was said by summarising and reframing.

Tip 3 – Be Mindful

In order for in-house counsel to build trust and respect with their peers or managers and in order to demonstrate integrity and insightfulness, they need to be mindful of their own headspace and that of the speaker.

To be mindful of their own headspace, in-house counsel should: 

• monitor themselves for directive impulses to respond in a certain way;
• check if they are overlaying any sort of unconscious bias; and
• consider how they are trying to direct the conversation and whether it is appropriate.

• if the speaker is unable to shift their mindset and is having difficulty in acknowledging and accepting another’s view point, then it is not an ideal time to start discussing compromises or solutions; however
• if the speaker has demonstrated an ability to be open to another’s view, then it is more appropriate to try to persuade or drive an agenda.

Tip 4 – Be a Mirror

When dealing with any situation, especially one involving high emotion, the most important thing to do is to demonstrate to the speaker they have been heard and understood. This is done by repeating back to the speaker their concerns with total sincerity, with mirrored expression and with the same level of intensity. Before in-house counsel starts to defend or justify their position, convey their opinion or raise a differing point of view, they should mirror what they have heard.

 In-house counsel can do this by: 

• Reflecting – saying back to the speaker what they believe the speaker has just expressed (in both substance and emotion) using language that is close to the speaker’s own. For example, “What you seem to be saying is …”

• Summarising – summarising the theme of a series of issues into essential points. For example, “There are a number of things we’ve discussed, including…”

• It gives a speaker the opportunity to clear things in their own head by listening to them-self through another’s voice;

• It allows the speaker to hear when they’ve gone too far and to potentially reconsider or retract negative or unhelpful comments; and

• It allows other people to ‘listen in’ to what the speaker is saying from a safe distance and without threat, because the words are being spoken in a different way and through a different voice.

These mediation principles are techniques which in-house counsel can use straight away to endear trust and confidence with their team. It should form part of the basic toolkit of any general counsel and will be relevant to all part of their role. Its use will not only result in more open conversations but more successful outcomes. In-house counsel wear many hats: the legal adviser, the conflict resolver, the problem solver.

Amanda Fajerman is the head of legal technology and design at lexvoco.