Hon Tricia Bigelow (Ret), now a retired judge, has led a distinguished career defined by a caring approach and a commitment to justice. From her tenure as a deputy attorney general, Municipal Court Judge and Superior Court Judge to her appointment as a Presiding Justice of the Court of Appeal, she’s gained a reputation throughout California for her ability to authentically connect with people. In the following article Hon Tricia Bigelow (Ret), Judge delves into the nuances of non-verbal communication in the context of arbitration, highlighting how body language, gestures, and facial expressions can influence the arbitration process and outcomes.
Non-verbal communication is the most ignored form of communication. However, it accounts for about 93 percent of all human communication, according to research conducted by Professor Albert Mehrabian, Professor Emeritus of Psychology at the University of California.
In terms of arbitration or mediation, the same percentage of 93 percent of non-verbal communication is used – non-verbal communication accounts for 55 percent, para-verbal communication constitutes 38 percent, and only 7 percent for verbal communication, as per this study.
Non-verbal communication encompasses body language and gestures, as well as the individual’s tone, pitch, and speed of voice when delivering a message. In this article,
Hon Tricia A. Bigelow (Ret.) on Arbitration: What Is It and How Does It Work?
Arbitration is the most common way to resolve a private dispute. When a dispute is submitted to one or more arbitrators (usually a retired attorney or judge), the parties agree that the arbitrator makes the final decision on the dispute, similar to a judge.
Hon Tricia Bigelow (Ret), Attorney says that private organizations usually administer arbitration and have set rules under which the arbitration will be conducted. These organizations also manage the process in whole or in part. The process is often chosen so that the dispute is resolved in private, as opposed to taking it to court.
The process of arbitration begins when both parties enter a pre-dispute contract wherein they agree that any disputes that will arise will not reach any court system. The arbitration process is generally governed by the Federal Arbitration Act (FAA) and state arbitration laws.
The parties choose an arbitrator who will review briefs and documentary evidence, examine evidence, and hear testimony. The decision of the arbitrator is non-appealable and legally binding. When parties agree to go this route, it essentially means that they are waiving their constitutional right to a trial by a jury of their peers.
The Influence of Non-Verbal Communication in Arbitration
While words are critical to assessing communication in an arbitration, evaluating non-verbal communication such as eye contact, facial expressions, gestures, and body language might be equally important, if not more.
Hon Tricia Bigelow (Ret), Judge says that understanding and managing non-verbal communication during arbitration is highly important – many parties and their representatives do some training so that they are able to present themselves in ways that could positively influence how the arbitrator views them, and ultimately, turn the outcome of the arbitration in their favor.
Here are a few ways non-verbal cues can impact the arbitration process:
Can Build Trust and Rapport
Nodding can convey active listening. Mirroring the body language of others means being engaged in what they’re saying. Open and engaging gestures as well as positive body language between parties can help build a sense of trust. Tricia Bigelow says that this rapport may come across to the arbitrator as a willingness to cooperate and may potentially impact his decision positively.
Can Establish Confidence and Credibility
In an arbitration session, confidence is important. Maintaining an upright posture, eye contact, open gestures, and other confident body language helps give the perception of credibility. Tricia Bigelow, Attorney says that it conveys a strong position in arguments, which can help sway the opinion of an arbitrator, who often favors the party who presents themselves more confidently.
Can Provide Emotional Influence
The arbitrator observes everyone’s non-verbal cues, including facial expressions. For example, rolling of the eyes usually means annoyance, and is often interpreted as rude and unprofessional. Facial expressions often communicate agreement or disagreement, and arbitrators take into account the emotional context presented when making a decision.
Can Convey Deception and Dishonesty
Hon Tricia Bigelow (Ret) notes, as mentioned, the arbitrator is keen on observing non-verbal cues, whether they’re positive or not. An example of body language or gesture that is common in arbitration sessions is someone folding their arms. This is a defensive gesture and is usually perceived as negative.
Fidgeting, avoiding eye contact, and other defensive cues could make the arbitrator doubt the sincerity of the presented information, and may impact his judgment.
An understanding of non-verbal communication can help one be more aware of his facial expressions, body language, and gestures during an arbitration, whether virtual or in person. Tricia Bigelow explains that this communicates a lot to the other party and to the arbitrator, who takes into consideration everything he observes in his decision-making.