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Bar News - October 18, 2013

Alternative Dispute Resolution: Clues You Can Use: Interpreting Nonverbal Communication


Editor’s Note: This article is based on Chapter 7 of Alternative Dispute Resolution: Negotiation, Mediation, Collaborative Law and Arbitration, a book by UNH Law professors John Garvey and Charles Craver.

Working on Your
Powers of Observation
If the subject of nonverbal communication interests you, there’s a great TED talk online by Pamela Meyer called "How to Spot a Liar" that offers some great insights.

After that, watch a political speech first with the sound on and then with the sound off. Two of the best to view are President Nixon’s "Checkers" speech and President Clinton’s "I did not have sexual relations with that woman" speech.

For further reading, look for David Matsumoto’s book, Nonverbal Communication: Science and Applications.
When parties mediate (or otherwise negotiate), they try to carefully communicate through words – either orally or in writing. But parties communicate in another way that can be extremely significant and is often overlooked. Nonverbal or wordless communication can be every bit as valuable to the careful observer.

Sometimes nonverbal communication is intentional. A person may smile, firmly shake an opponent’s hand, scowl, etc. This is all part of an intentional message sent to the other side. But there can also be unintentional, nonverbal cues. Because negotiating parties (and mediators) tend to concentrate on what is being verbally communicated and what is being intentionally communicated nonverbally, they often fail to appreciate the information being displayed through unintentional, nonverbal cues.

This is especially true when negotiators are talking, but is also true when they are listening and reacting to what is being said. Experienced poker players are familiar with this phenomenon. When people are less than forthright, they often display a kind of "nonverbal leak," which poker players refer to as a "tell." (For this reason, many poker players do not look at their own cards as they are being dealt. They watch the faces of their opponents as they look at their cards.)

People who fail to observe these nonverbal signs are likely to miss the most trustworthy messages being communicated by their adversaries. Certain nonverbal signals may also suggest that accompanying verbal messages are deceitful. While no one signal is a conclusive indication of deception, observers who look for relevant nonverbal patterns and behavioral changes can learn to spot likely prevarication.

Below are two lists of some of the most basic nonverbal clues. The first list provides "state of mind" clues. The second list provides "possibility of deception" clues.

Remember that the signals described below are clues – not litmus tests. When you see these behaviors, they give you information that you must assess in conjunction with all other information available. Also, no signal is universal. People may come into the negotiation or mediation with pre-existing nervous tics, nearsightedness, acute or chronic pain, dental issues, etc. There can be more than one reason for a person’s behavior.

Common Nonverbal ‘State of Mind’ Clues

Facial expressions
Facial expressions are the most easily manipulated forms of nonverbal communication for most people, yet subtle clues about the actual feelings of the signalers can often be perceived by careful observers. Taut lips or narrowed eyes may indicate frustration or anxiety. A subtle smile, often hidden quickly by a bowed head, or brief signs of relief around the corners of the a person’s mouth when new offers are made, may indicate that the offeror has approached or entered the other side’s settlement range or that the offeror has otherwise made a move that pleases the offeree.

A flinch may be an uncontrolled response to an inadequate offer or concession. This may sincerely indicate the unacceptable nature of the offer being conveyed. Manipulative negotiators may employ a contrived "flinch" to silently challenge the adequacy of opponent opening offers or concessions.

Negotiators who encounter what they consider to be truly reactive flinches should decide if their announced positions are clearly unacceptable. On the other hand, negotiators who think opponents are using contrived flinches to induce them to bid against themselves with consecutive position changes should: (1) recognize the manipulative nature of their opponents and (2) be careful not to change positions until they have obtained position changes from their adversaries.

Wringing of Hands
This is frequently a sign of frustration or tension. Distraught individuals often twist their hands and fingers into seemingly painful contortions. This signal usually emanates from those who are anxious regarding aggressive tactics being employed by opponents or about wholly unsatisfactory negotiation developments.

Rubbing Hands Together in Anticipatory Manner
This behavior is often exhibited by anxious negotiators who anticipate new and/or more beneficial offers from their opponents. Such conduct suggests an over-eagerness that may be satisfied with a minimal position change.

Tightly Gripping Arm Rests/Drumming Fingers on Table
Impatient or frustrated persons frequently grip the arm rests of their chairs tightly or drum their fingers on the table. Negotiators who exhibit such behavior are most likely displeased with the lack of progress they think is occurring.

Biting Lower Lip/Running Fingers Through Hair
These signals usually indicate stress or frustration. They emanate from persons who are disappointed by the lack of negotiation progress and/or their perceived opponent intransigence.

Eyes Wandering/Looking at Watch
These are signs of boredom and disinterest. Such signals can suggest a serious lack of interest in what is being said. Negotiators who encounter such signs should ask their opponents questions to force them to become more involved in the substantive discussions.

Opening Mouth Without Speaking
This is usually a sign of indecision. This person would like to talk – and may even be contemplating a position change – but she is not yet sure of what to say. Opponents who encounter such a situation should remain silent and be patient. They need to give this person the time she needs to decide exactly what to say.

Sitting on the Edge of One’s Chair
This is a sign of interest. When it follows a newly articulated position, it suggests real interest in what is being offered. Most people do not actually sit on the front of their chair, but only lean slightly forward. On the other hand, some individuals lean so far forward they place their elbows on the table in front of them.

Hands Touching Face/Stroking Chin/Playing with Glasses
These are usually signs of contemplation, although they can also be conscious or unconscious attempts to conceal emotions that would otherwise leak. Individuals feel uncomfortable sitting in silence while they consider unanticipated opponent disclosures or position changes. To cover their pregnant pauses, the actors use these devices to look as if something is actually happening while they contemplate their next moves. Such actors are likely to reject the offers that generated such nonverbal responses, but they will probably do so more positively to keep the process moving.

Steepling (Hands Pressed Together with Hands or Fingers Pointed Upward)
This is a sign of confidence, suggesting that the actors are pleased with developments. Negotiators who observe such signals should be careful not to concede more than they have to.

Leaning Back with Hands Behind Head
This particularly masculine posture is another sign of confidence. It may alternatively be an indication of contentedness. The actors are very pleased with negotiation developments.

Placing One Hand Behind Head
This is usually an indication of distress. It is as if the actors are psychologically giving themselves consoling hugs to counteract the negative consequences they are experiencing. Negotiators exhibiting this posture most likely see negative developments ahead.

Open/Uplifted Hands with Palms Facing Out
This posture is used to indicate the sincerity of what is being verbally communicated. It is frequently associated with "final offers" to demonstrate that the offeror has nothing more to concede. If the signal seems insincere, it is most likely a deliberate attempt to deceive opponents.

Crossed Arms/Crossed Legs
This may be an aggressive, adversarial posture or a defensive position, depending on the particular position of the arms and legs. If the arms are folded high on the chest and the ankle of one leg is placed on the knee of the other leg, this tends to be a combative posture. On the other hand, if the arms are folded low on the chest and one leg is draped over the other, it is a more defensive posture. In both cases, however, these tend to be unreceptive positions. If opponents begin bargaining interactions in such positions, it can be beneficial to take the time to establish sufficient rapport to induce them to become more receptive to what is being discussed. When negotiators approach impasse, one or both often exhibit this posture.

Covering and Rubbing One Eye
This is a nonverbal sign of disbelief. It is the nonverbal equivalent of the disbelieving expression "my eye." Negotiators who encounter this posture when they are making critical representations should recognize the possibility their statements are not being accorded much respect. They may have to restate their communications in a more credible manner.
Common Nonverbal Signs of Deception

In his classic book Telling Lies, Paul Ekman noted that people are especially inept at determining from nonverbal signals when someone is lying to them. Some of this is due to the fact that dishonesty can range from mere puffing to unequivocal deceit. Despite the fact that no particular nonverbal sign is a certain indication of deception, there are some signals that should cause observers to become suspicious. Some reflect the stress usually associated with lying, while others are deliberately employed by speakers to enhance the credibility of the misrepresentations they are about to utter. No one signal should be assumed to indicate deception. Persons should look for changes in established behavior and patterns of behavior.

Increase/Decrease in Statement Specificity
When individuals tell the truth, they fill in little details as they are recalled. When people lie, however, there are no actual details to remember. As a result, they often omit the usual amplifying details, articulating the bare bones of their fabrication. Specific questions can be used to force minimal detail liars to fill in details they do not really know or to discover whether detailed statements are really accurate. On the other hand, carefully prepared liars may provide an excessive amount of information designed to make their fabrications appear more credible.

Increased/Decreased Gross Body Movement
When individuals interact, they move their arms, legs, and torso regularly. They rarely sit perfectly still. Under stressful situations, some persons become more fidgety and move their arms and legs at an increased rate. Deceitful people who are afraid of getting caught may exhibit similar movement. On the other hand, some fabricators deliberately minimize their body movements in an effort to appear more trustworthy. As a result, negotiators should be on guard when they evaluate the veracity of statements emanating from individuals who have clearly increased or decreased their gross body movements.

Placing Hand Over Mouth
Most persons believe that lying is morally wrong. Their consciences bother them when they deceive others. Psychologists have noticed that liars frequently place their hands over their mouths when they speak, as if they are subconsciously trying to hold in the lies they know are morally reprehensible.

Eyes Looking Up to Wrong Side
When people try to recall past circumstances from memory, right handed individuals tend to look up and to the left and left handed persons tend to look up and to the right. On the other hand, when individuals try to create new images, right handed persons tend to look up and to the right and left handed people look up and to the left. When right handed negotiators look up and to the right or left handed negotiators look up and to the left, this may suggest that they are not trying to recall actual circumstances but are instead creating false stories.

Dilated Pupils/More Frequent Blinking
When persons experience stress, the pupils of their eyes widen and their rate of blinking increases. Although negotiators rarely interact with others in such proximity that they can see the size of their pupils, they can easily notice increased blinking. This could be associated with other factors, such as dryness, fatigue, foreign matters, etc., but it could be due to the stress associated with deception. As with other clues, it is important to look for changes in behavior.

Narrowing/Tightening of Margin of Lips
Stress often causes individuals to briefly narrow and tighten the red margin of their lips just before they speak. Careful observers may be able to see the lips of prospective speakers tighten into a narrow line across their lips just before they utter false statements.

Elevated Voice Pitch
Persons experiencing anxiety frequently speak with an elevated voice pitch. Even though experienced prevaricators work to control their voice when they talk, listeners can often discern their higher voice pitch.

More Deliberate/Rapid Speech
Individuals who experience stress when they lie may inadvertently speak more rapidly. On the other hand, persons who wish to have their misrepresentations completely heard may deliberately speak more slowly.

Increased Speech Errors
Many persons who try to deceive others have a greater number of speech errors. They may stutter, repeat phrases, or trail off without finishing their statements. They may also include nonsubstantive modifiers like "you know" or "don’t you think." It is as if their conscience is disrupting the communication between their brain and their mouth to prevent the prevarication.

More Frequent Clearing of Throat
The tension associated with lying may cause speakers to engage in more throat clearing. As they prepare to utter their false statements, they nervously clear their throats. Of course, the speaker may have allergies, a cold, etc. Again, look for changes in established behavior and patterns of behavior.

Professor Garvey teaches negotiations and ADR, and directs the Daniel Webster Scholar Honors Program at UNH Law. John is in the National Academy of Distinguished Neutrals.

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