NEGOTIATION 2004 -- ACTIVE LISTENING

 

Active listening is: reflecting back the substance and, according to most theorists (eg Binder & Price, but not Bastress & Harbaugh), the feelings of what you have just heard. It is also called paraphrasing and empathetic listening. 

 

Be flexible.  Use your own judgment in deciding when to make an empathetic response, and how much to paraphrase back. (If you feel uncomfortable, start with just the facts and not feelings.) The goal is to make the speaker feel heard and understood, but not judged. You can pause before reflecting back. A useful introduction to a reflection back is "Let me see if I understand what you've been saying. You . . ." Active listening does not continue forever. When the client is finished talking and you have reflected back appropriately, you get the chance to express your own views.

 

The advantages of active listening:

n      Active listening shows respect to the speaker. It shows that you genuinely want to understand his or her viewpoint.  (Even sleazy characters have a right to express themselves to their lawyers.)  It helps to develop a good relationship between the speaker and the listener. (Sometimes you can't help a client legally, because for one reason or another he or she does not have a strong case. Listening to them is emotionally helpful, and this may be the only type of help you can offer.)

n      Active listening, by not judging the speaker, facilitates further disclosure.  Disclosure is important for effective legal representation.

n      Reflections back allow the speaker to correct you if you have, in fact, misunderstood. (But try for accuracy: an incorrect reflection is a sign that you don't understand and also may guide the client inappropriately.)

n      Active listening helps the listener stay focused on the conversation, and to remember what he or she hears.

n      Active listening defuses conflict – it is hard to keep punching when the other side does not punch back.  Also, there is no fresh fuel for the disagreement from contradictions and arguments by the listener.  Also, it allows the speaker to vent feelings.

 

What active listening isn’t:

n      Don't parrot (repeat back the same words -- this indicates hearing, but not necessarily understanding; it doesn't facilitate further communication as much as genuine empathy; and it gives the appearance that you are just going through the motions).

n      Don't interrupt the speaker.

n      Don’t repeat everything back.

n      Active listening is not making approving responses (that adds substance beyond just conveying that you have heard and understood).  Saying "I understand" does not prove that you do (only that you have memorized this phrase), and it is not active listening.

n      It is not reflecting back to ask a question (if you have to ask a question, you are showing that you are uncertain about what the speaker is saying – it may be necessary, but at the end of your questions, then briefly reflect back the substance).

 

Risk of active listening

That client will hear approval, not just empathy.  Many recommend starting with a short statement indicating that you want to figure out where the speaker is coming from, and that only after you have done that will you present your own thoughts.

 

Why should you empathize with “undesirables”?

Š      The Law Society Code requires you to accept all clients (if within your expertise and your available time), and also that you do your best. Our judicial system is based on the premise that everyone is entitled to a good defense. A good defense requires understanding your client's position and preferences, so anything which facilitates disclosure is good. Also, legal solutions must often take feelings into account.  For example, you wouldn’t want to negotiate an apology to settle a defamation case in lieu of damages, then discover that your client will not apologise.

Š      Empathy is not the same as sympathy or compassion. You can understand the person and still reject the choices they have made.  (Judge in your own mind if necessary, but not out loud.)

 

It takes practice!

Practice at home with flatmates and friends. 

 

"I" statements

"You" statements (eg "you have no consideration for my feelings" or "you think I am too fussy about cleanliness" or “you know you’re going to forgive me eventually”) tell another person how they think, feel or behave. People resent this, as you are denying them the right to speak for themselves. Especially provocative are statements which begin "you always" or "you never" because these ascribe unchangeable characteristics to the other person.

 

Note that “you” statements as part of active listening (paraphrasing back what the other person has said) are OK, because listening/empathasising is the source of the statement, not judging, and the active listener is always willing to be corrected if wrong.

 

Good “I” statements take the form: "I think/feel x when y happens" (eg "I feel hurt when you don't tell me of your plans in advance" of “I feel lonely when you don’t come home until late”) or "I think/feel x when y happens because z" (eg "I feel like canceling negotiations when you fail to show up on time because I think that we will not have time to reach a settlement.")

 

Beware of camouflaged "you" statements, eg "I feel that you blame me." This is very close to saying, "You blame me".  A better approach is to ask it as a question – “do you blame me?” – and gives credence to the person’s answer.