For something that’s so, well, silent, much has been said about silence itself. For example, we have a constitutional right to be silent. We’ve long been told that “silence is golden”. One of the world’s most popular cartoonists, Lynn Johnston, says that, “The most profound statements are often said in silence.” And Mark Twain, never at a loss for words himself, summed up the virtue of silence when he said, “It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.”
Silence is perhaps one of the most powerful tools in the mediator’s toolbox. I can learn about the legal dispute by reading the lawyers’ submissions or talking to the lawyers in advance of the mediation. But I can’t learn about the parties – their backgrounds, what makes them tick, which of their personality traits will be helpful or counterproductive in settlement negotiations, or how compelling their testimony might be at trial, without meeting the parties and listening to them. These are the types of things a mediator must know in order to quickly build the rapport and trust needed to assist the parties in deciding how and whether to resolve their dispute. In order to listen, however, I must be silent.
By simply listening to the parties, I have learned about businesses I would have never thought existed, inventions that boggle the mind, people who made millions of dollars on little more than a handshake, and family histories that have led to wealth-destroying will contests. The parties know more about the dispute than I ever will. I can likely figure out what the important factual issues are by asking the right questions, but only through listening will I learn why those issues are important.
One other thing about silence bears mention. In the right context, it is downright deafening. People are inherently social beings, and silence in a group tends to create discomfort among the group. If at the end of a joint session or in mid-caucus there is a sufficient period of silence, a party or lawyer may well try to fill this vacuum by speaking. If this gets the parties talking again, whether to the mediator or to each other, suddenly there is a dialogue the mediator can help direct toward fruitful settlement negotiations. So whether you are an advocate or a neutral at mediation, turn back to Mark Twain’s admonition that, “The right word may be effective, but no word was ever as effective as a rightly timed pause.”