By Paul Sills

To be a successful mediator, it is important to have some degree of influence and persuasion over the disputing parties. Not in terms of the outcome but in terms of the process and the conversation that the parties need to have with each other. This enables the mediator to guide the parties through the process efficiently, ideally allowing them to resolve their dispute.

Psychology professor Robert Cialdini has investigated theories of social interaction and conducted substantial research in the areas of persuasion and influence. Through this research, six principles of influence have been developed and applied to mediation and negotiation. I discussed the principle of reciprocity in my most recent article (LawTalk 934, November 2019, “Reciprocation bias and Hanlon’s razor", pages 42-43). In this series, I will discuss the remaining five principles: the principle of liking, followed by the principles of authority, scarcity, consistency and, finally, social proof.

While we may like to think that we don’t care whether our peers like us or not, social science suggests that likeability contributes to our ability to be successful influencers and persuaders. People prefer to say ‘yes’ to those they like.

Pam Holloway and Michael Lovas, authors of Axis of Influence: How Credibility and Likeability Intersect to Drive Success (2009, Morgan James Publishing), assert that likeability is not a gift but a skillset. Their research shows that the more likeable we are, the more successful we seem to be in life, business, and in receiving service from different service providers such as doctors, etc. In terms of influence, our actions are more susceptible to being shaped by those who we respect and admire. If we do not think favorably toward someone, we are less likely to value their contributions to our lives.

Through their research, Holloway and Lovas have developed “seven components of likeability”, which are: having a positive mental attitude, being open, non-judgemental, having inner security, the ability to show vulnerability, demonstrating empathy and, finally, relatability. These components can be seen to contribute to the success of individuals throughout their studies.

Relatability significant

While all seven components of likeability are valuable in the process of mediation, Professor Cialdini believes that relatability is a particularly significant skill and characteristic for mediators to demonstrate. The ability for a mediator to drive and direct the parties in their negotiations whilst also remaining actively present in the conversation is vital in achieving likeability in the eyes of the parties. It is therefore important that the mediator makes it clear to the parties that their role is not to make decisions for them but to facilitate a collective conversation which, ideally, will lead to an agreeable resolution. Rather than being an authoritative figure, a mediator should be more grounded within the discussions, ensuring that the parties see them as being available for help and guidance rather than judgement.

Mediators can also foster relatability by acknowledging the similarities of the disputing parties. Highlighting features such as shared desires to maintain a business relationship, minimising costs, minimising publicity, etc, are all ways in which a mediator can unite parties through relatability. Parties that are made aware of their similarities are less likely to be as hostile toward each other. In addition, likeability is attributed to how much in common we have with someone else.

"The wise man doesn’t give the right answers, he poses the right questions." — Claude Levi-Strauss

Our ability to ask beneficial and valuable questions has also been shown to enhance our likeability and thus our success. As professionals, we are expected to be able to successfully extract information from our clients through asking the right questions. However, many of us do not evaluate how our own questions can be honed as a skill, or more importantly how asking questions could relate to our own likeability. Successful questioning is the key to building rapport with others and fostering relationships in both our professional and social interactions.

Focus on self

Harvard psychology scientists carried out a study to determine the link between questioning and interpersonal relationships. They found “the tendency to focus on the self when trying to impress others is misguided, as verbal behaviours that focus on the self, such as redirecting the topic of conversation to oneself, bragging, boasting, or dominating the conversation, tend to decrease liking”. In contrast, “verbal behaviours that focus on the other person, such as mirroring the other person’s mannerisms, affirming the other’s statements, or coaxing information from the other person, have been shown to increase liking”. (Karen Huang et al, "It Doesn’t Hurt to Ask: Question-Asking Increases Liking" (2017) 113 JPSP 430 at 431)

Asking questions demonstrates an interest in the other person/party, which is a likeable quality.

In mediation, successful questioning is a fundamental part of the process. A party’s ability to adequately communicate their concerns and feelings can be achieved through questioning. This allows for the main issues to be clearly expressed and heard by the other party.

It is also important that the mediator asks questions in order to ensure that all aspects of the dispute are laid out and addressed. From here, settlement discussions can be held. Further, it is important that parties are given the opportunity to ask each other questions or seek clarification throughout the process. Rather than each side communicating their issues and then moving on, allowing them to ask each other questions demonstrates the idea that each party has a genuine interest in the other side’s arguments and a mutual desire for settlement.

While likeability may appear trivial, it is clear that it contributes to our success in both social and professional relationships. In mediation, being relatable is particularly important because parties that are able to envision each other’s similarities (that is, find the other party relatable) are more active in settlement discussions. The ability and opportunity to ask relevant questions also contributes to our likeability and it is important for mediators to facilitate this in order to minimise feelings of hostility between parties. In addition, asking relevant questions of those around us suggests a genuine interest and respect toward them, and this is reciprocated.

In mediation, the opportunity to ask questions highlights the respect between parties, suggesting a mutual desire for resolution. If we are able to reflect on our actions in relation to others, we are more likely to conduct ourselves in a more likeable fashion. The next article will investigate the relevance of authority.

Paul Sills paul.sills@paulsills.co.nz is an Auckland barrister and mediator, specialising in commercial and civil litigation. He is an AMINZ Mediation Panel member.