Mediation Message No. 5


Kinesics, the science of body language, provides evidence about how the human mind processes information. It is very useful at trial where the physical cues of the prospective jurors, witnesses and judge might indicate how each is responding to you, your opponent and the facts at hand, especially when that person’s verbal responses are inconsistent with what his/her body is saying.
As an example, during voir dire, a juror might answer that she is prepared to listen to the attorney’s case but, at the same time, her arms and legs are crossed, indicating defensiveness. Body language, however, can have more than one interpretation; in this instance, the juror’s crossed arms and legs may indicate that she is afraid or cold rather than defensive. Nonetheless, the application of kinesics principles at trial is a valuable tool.

Being aware of body language at mediation is also important. It can be used to analyze the attorney’s client, opponent and the mediator. The client who won’t look at his/her attorney or sits in a “closed” rather than “open” position is most likely intimidated and must be counseled and made more comfortable about meeting the other side and engaging in a process with which the client is unfamiliar. The opposing attorney and his/her client (and adjuster, if applicable) may very well reveal unintentionally how they’ve evaluated your case by their body language, voice patterns (e.g., aggressive tone as contrasted with a more conciliatory approach) and communication techniques (e.g., direct as opposed to a qualified response). This information can be helpful in responding to offers during the negotiation process. At the same time, you should be aware that your own body language can signal to the other side how you really feel about the merits of your case.

Copyright, Michael D. Marcus, August 2003

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