by
Daniel Merz, Ph.D.
Generally speaking, empathy is the ability to put yourself in someone else’s shoes for the purpose of valuing a person’s perspective and avoiding shame and judgment. It’s the ability to identify what someone is thinking or feeling and respond to their thoughts or feelings with appropriate emotion. In mediation the use of empathic statements conveys to clients that the mediator has a respectful understanding of their thoughts and feelings (Gordon, 2015).
When dialog in the mediation process becomes stuck or unproductive, the use of empathic skills can lead to getting the conversation back on a more productive track. Daniel Goleman (1995) contends that empathy takes three forms, Cognitive, Emotional, and Compassionate. Cognitive empathy in Goleman’s view is the ability to understand another person’s way of processing information or thoughts. It is also referred to as perspective taking. A second form of empathy is what Goleman refers to as Emotional empathy. This is the ability to place yourself in another person’s shoes and identify with their feelings or emotions. Affective intimacy is another way of describing emotional intimacy. With Emotional empathy the listener is giving attention to the feelings being expressed behind a person’s verbal statements. With Compassionate empathy the listener is being moved to offer some form of help or support when she/he feels moved by the feelings and emotions being expressed by an individual.
Example Dialogue
The use of empathy will sustain dialogue during conflict because it has a good chance of keeping parties engaged in the process (Eddy, 2017). On occasion a mediator will encounter parties that engage in high conflict behavior. There can a noticeable atmosphere of tension in the room. Empathic skills used properly can reduce tension and keep parties involved in the mediation process.
Here are two examples of possible mediator statements:
Example 1
Mediator: “You are looking confused”.
Client: “No, I am not confused. I am frustrated”.
or
Mediator: “It seems like you are confused by the responses from the other party”.
Client: “Yes, I am confused. I don’t know quite how to respond”.
Mediator: “Could you share a little more about what has been confusing for you”?
Example 2
Mediator: “You look upset.”
Client: “No, I am not upset. I feel very ambivalent”.
or
Mediator: “It appears that you are upset”.
Client: “Yes, I am upset. I feel like I am being attacked by the other party”.
Mediator: “What is the other party saying that is upsetting to you”?
In the mediator’s first statement in both examples, the statement could be perceived by the listener as a presumption that the mediator is an authority on how the client feels. Mediators have a better chance of continuing a conversation with a client if the mediator is able to form her/his comment as a tentative impression of how the client is expressing feelings. There is no presumption of certainty on the part of the mediator. This leaves room for the client to feel safe to further elaborate on her/his feelings.
Other possible empathic lead-ins might include:
“I have the impression that you are unhappy”.
“Are you feeling stuck”?
“It’s looking like you could use a break”.
Cautionary Considerations
Some cautionary matters on the use of empathy. With high conflict parties, you need to be careful that your empathic comments are not interpreted by one party that you are favoring them or taking their side. In the event that a mediator is being perceived as biased, a mediator will need to pay more attention to how he or she manages the challenge of being detached verses seeming emotionally connected to one of the parties.
Another problem a mediator can create for herself or himself is failing to monitor one’s own level of self-engagement. When feelings are identified and explored, the mediator is vulnerable to having her/his own feelings get involved in the process via identification with a party. Feelings that are expressed can touch off a mediator’s own feelings where the mediator’s judgments and comments take on a more personal tone.
There is the matter of what is described as emotional contagion. This occurs when the mediator becomes too emotionally involved in a party’s expression of feelings. The mediator finds him or herself too closely identifying with another person’s feelings and emotions. The place of neutrality on the part of the mediator comes into question. Often the result of a mediator being caught up in emotional contagion is the mediator being vulnerable to developing high levels of stress, emotional exhaustion, and avoidance coping behaviors.
To summarize, ponder for a minute the effect that being truly understood has had on you. It is a powerful feeling when someone in your life relates to you in a manner in which you feel like your thinking and feelings are accurately and genuinely recognized and understood by another person. The proper use of empathy in the mediation process can result in all parties believing and feeling that something positive, just, and useful was accomplished in a mediation setting (Irvine & Farrington, 2018).
References
Eddy, B. (2017. Calming upset people with EAR. Academy of Professional Family
Mediators (October)
Goleman, D. (1995). Emotional intelligence. New York: Bantam Books.
Gordon, E. (2015). Connecticut Law Tribune. (January)
Irving, C. & Farrington, L. (2018). Mediation and emotions: Perception and revelation.
In Conway, H. & Stannard, J. (Eds) The emotional dynamics of law and legal
discourse. London: Bloombury.
Below are some Internet articles that further expand on the importance of empathy in mediation.
https://www.gordonadr.com/Artwork/Empathy%20in%20Mediation.pdf
http://www.austlii.edu.au/au/journals/QUTLawJJl//2010/3.pdf
https://apfmnet.org/calming-upset-people-with-ear/
Copyright Daniel Merz, 2020
Negotiation Guidance Associates 
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