Is she seriously considering your offer? Is he even listening to your arguments? By learning how to speak body language, you can decode what people are thinking—and dramatically increase your chances of settling a case at mediation.

What Lawyers Don't Know

Lawyers are combat-ready when it comes to verbal communication. But we march into some of the most intense communication situations possible—depositions, jury selection, oral arguments, trial and mediation—without even basic training in nonverbal communication.

Business schools offer courses on the subject, and salespeople devour books on body language. But lawyers are blissfully unaware that humans wear their emotions, not on their sleeves, but on their bodies. Studies published during the 1960s by University of California, Los Angeles psychology professor Albert Mehrabian show that words are not enough—in fact are of surprisingly minor worth—in face-to-face communications that involve emotions or nonfactual information (like negotiations). In those situations, the words we say make only 7 percent of the impact; 38 percent comes from tone of voice; and a whopping 55 percent is nonverbal.

Ray Birdwhistell, the American anthropologist who pioneered the field of kinesics (the study of communication by body language), reached a similar conclusion: “No more than 30 to 35 percent of the social meaning of a conversation or an interaction is carried by the words.”

Speaking Body Language at Mediation

Body language is especially critical in mediations. Litigation is by definition confrontational, so, like most mediators, I typically separate the parties after the opening conference. That means the lawyers have to be very focused on nonverbal communication during the opening conference. I have to be aware of it all day, since, as the mediator, I am the proxy charged with making sure that the two sides are communicating successfully, even though they are not in the same room.

Secondly, the parties and the lawyers have spent months or years opposing each other and now suddenly are being asked to work together, cooperatively. If they are not attuned to body language, they may unconsciously send messages that undermine their ability to settle the case.

How to Win a Mediation With Body Language

A basic understanding of body language can help you choose the right seat, read your opponent and even pick out the person on the other side who has the decision-making authority.

A seemingly trivial detail—where you sit at the conference table—can have a big impact on whether you settle your case.

Research by Allan and Barbara Pease, authors of “The Definitive Book of Body Language,” and by the Program on Negotiation at Harvard Law School, show that people interact in predictable ways depending on where they sit at a negotiating table. People placed directly across a table from one another start to oppose each other; people who sit kitty-corner across the table from one another tend to be relatively indifferent to one another; and people who sit directly beside each other on one side of the table or at the corners of a table tend to cooperate more.

Focused on zealously representing our clients, we lawyers tend to take the seat directly next to the mediator, who sits at the end of the table. We position our clients beside us, farther down the table. Ironically, that seating is probably the worst possible choice, if we want to settle the suit.

By switching the seating so the clients sit next to the mediator, we can encourage the clients to work cooperatively with the mediator. And, if the case has become acrimonious, it might make more sense to split the difference; instead of forcing the two clients to face each other, and the two lawyers to face each other, put one client on the mediator's left hand and the other party's lawyer on the mediator's right hand. The clients will then be in positions of relative indifference to one another, as will the lawyers.

Rejecting/Accepting

Is the other side (or the jury) accepting what you have to say—or rejecting it? Most people will tell you by their body language.

A person who is rejecting what you have to say will settle back into her chair, moving away from you. She may cross her legs in the opposite direction from you or fold her arms across her chest. Her shoulders may hunch downward, and she may touch her face or mouth, symbolically holding back what she wants to say.

So what do you do if you see these signs at mediation? You need to understand that the person is no longer open to what you are saying. You need a new strategy.

A person who is accepting what you have to say, on the other hand, will open up her body, uncross her arms and legs and lean in to hear more.

Thoughtful Consideration

Is your opponent seriously considering your latest offer? Watch to see whether the person touches or strokes his chin, puts a pen or finger to his mouth or puts one arm of his glasses' frame in his mouth. When the person has decided, he will do one of two things. If you see him cross his arms and legs and sit back, he probably is going to say no, and you want to act before he gets the words out. You can present a new argument or reframe what you said earlier. If he leans forward with his arms open, he probably has decided he agrees with you.

Who Has the Authority?

Sometimes at a mediation it is not clear who is calling the shots. If you want to figure out who is in charge, watch for mirroring. The leader will be the first to take a body position (e.g., hands on knees or crossed legs), and the others will follow. The leader also may sit in the power posture, literally making himself appear larger, with elbows out and leaning forward. If the leader is a man, he may spread his legs.

Once you figure out who is in charge, watch the person's body language to see whether he is accepting what you have to say. If not, change what you are saying or how you are saying it until you can connect with the leader.

So at your next mediation, watch carefully—somebody is trying to tell you something.

Lee Wallace, Bay Mediation

Lee Wallace mediates at BAY Mediation and Arbitration Services. A 30-year trial lawyer, she is a former president of the Georgia Association for Women Lawyers and an honors graduate of Harvard Law School.