November 26, 2012

Negotiate, Mediate (and Testify) Eye to Eye

By Dr. Ken Broda-Bahm: 

Have you ever seen an argument get somewhat bitter or personal in an online forum or via electronic communication? That is a little like asking, “have you ever visited an online forum or used electronic communication?” When we’re safe behind keyboards, or to a lesser extent, on the telephone, arguments can escalate more than they would in person. For those who study communication, the theory has been that this heightened tendency toward becoming nastier and more aggressive is due to a subjective feeling of anonymity or invisibility when one is arguing without in-person communication. But based on a recent Israeli study, the cause may be something simpler than that: a lack of eye contact. 

Look your audience in the eye: It is one of those staples of public speaking advice, and everyone should know it by now. But if you visit any courtroom and look at how many witnesses are not just glancing but maintaining eye contact with a jury or a judge, then you’ll see that this advice is more popular than it is practiced. And if we take a step back in the process and look at the critical discussions that will determine whether a case settles early, late, or not at all, then that opportunity to literally see eye to eye is often displaced by emails, voice mail messages, or letters. The research suggests that we would be more likely to find a favorable and empathetic audience if we seize on in-person meetings whenever possible. This post will take a look at the new study, and discuss how its results should influence the way we talk about cases prior to trial, as well as the way we testify at trial.  

The Research: 

It is not often that you find a study in Computers and Human Behavior with a message for litigators, but the recent work by two behaviorists from the University of Haifa (Lapidot-Lefler & Barak, 2011) may be the exception. Focusing on the colorful academic concept of “toxic online disinhibition,” the researchers designed an experiment in order to get at the source of greater hostility in mediated communications. They engaged 71 pairs of college students, who did not know each other, in the task of discussing an issue and trying to come up with a solution. The discussions took place over Instant Messenger (text messages) and were varied in a number of ways. Some pairs simply chatted over their electronic devices. Some were encouraged to share personal details about themselves. Other pairs, however, had web cameras and were able to see their discussion partners via either a side view or a closeup facial view. The conversations were then self-assessed and reviewed by expert raters who looked at the level of hostility. 

It turned out, anonymity and invisibility were not the strong predictors of a more aggressive interaction. Instead, the strongest predictor was the simple absence of eye contact. Knowing personal details about one’s partner, and even being able to see one’s partner but not engage in eye contact, did not work to hold down the typical level of bluntness, threats, or insensitivity sometimes seen in electronic communications. But looking into someone’s eyes did work. As the lead author Noam Lapidot-Lefler was quoted in a Scientific American piece on the study, the theory is that eye contact works because it “helps you understand the other person’s feelings, the signals that the person is trying to send you,” and that inturn helps to foster empathy and better communication. 

Implication: Negotiate and Mediate Eye to Eye

Of course, most formal mediations involve at least some level of in-person communication, but if it is structured as a form of “shuttle diplomacy” with sequential messages being carried back and forth through a mediator, then you have to wonder how much opportunity there is for genuine interaction. Before and after that mediation, it appears from most accounts that it is still relatively rare for opposing litigants to meet in person in order to settle a case. Apart from a few words exchanged around the edges of a deposition, opportunities for face-to-face meetings aren’t often taken. 

Given the destructive tendency for settlement interactions to be taken over by competitive posturing, rather than genuine engagement, there may yet be room for the old-fashioned offer to talk about a disagreement over dinner or a drink. There is no guarantee, of course, that better mutual understanding will lead to an agreement, but given the stakes involved and the high costs of moving a case all the way to trial, this study is another reminder for litigators to always ask, “have we tried our best to see eye to eye on this case?” The lesson is that this is best done in person. 

Implication: Testify Eye to Eye

Fact finders, of course, want to know if the witness is telling the truth. To do that, they’ll rely on all manner of folk wisdom about what “the truth” looks like when it is being delivered. One of the most reliable juror habits is to look the witness in the eye to determine truthfulness. This, as we’ve written before, is a strong reason to prefer present witnesses over absent ones, and to not be too quick to rely on a video deposition or an affidavit in lieu of a live witness. It is not a matter of the witness being disbelieved simply because they are on tape. Instead it is a matter of the fact finder lacking access to the full spectrum of cues they would ordinarily use. And one critical cue that cannot be duplicated on paper, tape, or videoconference is direct eye contact. 

Of course, this is part of the standard advice that nearly all witnesses receive prior to testifying in trial: Look the jurors in the eye. Still, I’d say that a majority of witnesses either spend their time looking at counsel, looking down at their hands, or briefly glancing up and letting their eye contact “swim” across the jury rather than lighting down on one particular juror, then moving to another juror, and so on. “The jurors won’t always look at you,” I’ll often tell witnesses, “but when they do, you want to be looking directly at them.” And again, it is not a simple matter that a juror will say, “I didn’t believe her because she wouldn’t look at me,” (though they do sometimes say that), but more a matter of jurors simply lacking the full understanding, and as a result giving less empathy than they would otherwise give. Trials turn on evidence, but the understanding of that evidence can often turn on small differences. Being the witness that confidently looks individual jurors in the eye can be one of those key differences. 


Other Posts on Nonverbal Communication: 

____________________ Lapidot-Lefler, N., & Barak, A. (2012). Effects of anonymity, invisibility, and lack of eye-contact on toxic online disinhibition Computers in Human Behavior, 28 (2), 434-443 DOI: 10.1016/j.chb.2011.10.014


Photo Credit: “Tanja’s Eye,” Borya, Flickr Creative Commons

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