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Transparent Mediation: Giving Away Our Strategies

by Alan E. Gross
March 2011 Alan E. Gross

(This is an excerpt from the entire article: Transparent Mediation: Giving Away Our Strategies. Click here for the entire pdf.)

When mediators act as trainers, they often offer classes designed to improve conflict management and to convert disputes into opportunities for understanding and change.   However, during mediation sessions convened to deal with specific disputes, these same mediators rarely share or explain the strategies that they advocate in trainings.  

Disputants, in contrast to trainees, usually agree to mediate voluntarily as a means of dealing with conflict or because they are required to mediate by a court or other authority.  These mediation sessions, designed primarily to facilitate dialog aimed at increasing understanding and possibly leading to resolution of a specific conflict, can also provide an opportunity to acquire and practice general skills similar to those presented in training classes. 

In this note, I will ask you to consider how and when you and other mediators might reveal and demystify some of our key concepts and tools.  After introducing the concept of  “transparent mediation”  (hereinafter TM) and providing some examples of its use, I will request some feedback about how you have used these techniques in your own practice.

When parties in a dispute learn how to use and practice these tools, they can be empowered to apply them beyond the instant dispute that brought them to the table. A main goal of TM then is to raise awareness of mediation communication skills so that they are more likely to be used during the mediation session, and also taken away from the session and employed effectively in everyday life.

Making some of our strategies transparent is not a new idea.  Most mediators at one time or another subtly or overtly make specific practices known to their clients.  For example, a mediator might ask one party to reflect another party’s position or interest to demonstrate understanding.   However, what I advocate here -- consciously making an effort to insert training principles into an actual mediation session --remains relatively rare. Moreover, the effectiveness of such transparent training during a mediation session, like most mediation procedures and strategies, has not, to my knowledge, been empirically tested.

Although the conscious practice of TM is not common and its efficacy has not been evaluated, the concept of transparency has not entirely escaped the attention of the field.  Notably, almost 15 years ago, Michael Moffitt published a seminal article (Moffitt, 1997), “Casting Light on the Black Box of Mediation: Should Mediators Make Their Conduct More Transparent?”

Although Moffitt never directly answers the subtitled question, he points out that none of the major mediation models have addressed the potential utility of TM2, he includes interesting instances of places in the mediation process where TM might be introduced appropriately and he provides illustrations of how revealing mediator strategy to parties can be more or less effective depending on the context.

In addition Moffitt distinguishes two kinds of transparency -- “process” when mediators decide to share what strategies or steps they will employ from “impact” transparency when mediators also explain why they choose to take these actions. He also conjectures (Moffitt, 1997 p.2) that TM is rarely employed because mediators fear that TM interventions are less effective than standard non-transparent ones.  However, he also hypothesizes (p. 42-3) that mediators may be more comfortable using impact-transparent approaches aimed at specific behavior, e.g., not interrupting, than those targeting analysis or perceptions, e.g. how to think about the problem at hand.  How easy or likely it is for mediators to introduce TM is not necessarily correlated with the potential utility of such interventions.

However, despite Moffitt’s clear presentation and analysis, there has been virtually no follow up research or writing on the topic in the decade following publication.  This dearth of TM research and application may be related to a mediator belief that revealing what they are doing and why they are doing it can negatively impact effectiveness. However the relative absence of TM usage may also reflect a professional “posture” found in many fields.  By posture, I mean that some mediators, like physicians, attorneys, computer technicians and others, may feel that sharing strategies and information with the public they serve will somehow dilute their perceived professional expertise and reputation.  As mediators, we may be especially vulnerable to this concern, because unlike our fellow professionals in law, medicine and science, we use very few unfamiliar terms that in more technical fields may function as markers of superior knowledge to clients and the general public.

Some of the tools, tactics, principles and strategies that my colleagues and I have shared and demonstrated with participants during mediation sessions include active listening especially reflection, agenda building, reactive devaluation, reality checks/ BATNA, encouraging empathy, generating options, identifying interests, constructive emotional communication, and delaying quick reactions to other parties.   Following are examples first of a sample TM opening statement, and then how these typical mediator strategies might be revealed and explained to disputants at appropriate points during a session.

Opening Statement, After presenting an introduction of the main elements of mediation, including values such as neutrality, confidentiality and self-determination, and outlining general goals of the process such as understanding each other’s points of view, facilitating dialog, generating options and seeking common ground, a sample TM opening might proceed like this:  “ As mediators we use certain techniques to facilitate understanding and constructive dialog.  Occasionally during this session I will point out some of the methods we use and that we may encourage you to try.  For example we often practice a form of active listening where we will reflect back what each of you say to see if we have understood you before any new information or response is added to the dialog.  After reflecting, we often check with each of you to make sure you feel accurately heard before continuing.  This is a bit different from “normal” conversation where each party often reacts before checking to see if the other party feels understood. 

In addition to pointing out active listening techniques, we may use and explain other mediation strategies such as building an agenda to insure that all relevant issues will be discussed, and brainstorming to generate options for resolution.  Many of these techniques are likely already familiar to you; however emphasizing them may increase your awareness of their potential usefulness, and encourage you to use them effectively when you talk about the situation that brought you here.  In addition, some of the strategies that we practice today may prove useful in other conflict situations.”

Biography


Alan Gross, Ph. D. has mediated, arbitrated, facilitated, and trained for over 20 years at many venues in the Northeast US where he served as Senior Director, and 9/11 Family Mediation Coordinator for the Safe Horizon Mediation Program in New York City.  That work with 9/11 victims was recognized with a US Department of Justice Volunteer for Victims Award. He has also been appointed as ombudsman for the American Psychological Association, as arbitrator for AAA, FINRA, and as mediator for the US Postal Service and the US Army.   

Gross holds MBA and Ph.D. degrees from Stanford University and was formerly Psychology Department Chair at the University of Maryland. He is a Fellow of the Association for Psychological Science, and the author of a textbook and more than 50 chapters and papers related to conflict resolution and social psychology. He is the recipient of the 2011 ADR Achievement Award from the Association for Conflict Resolution, Greater NYC Chapter, and currently teaches graduate courses in mediation skills at the NYU Center For Global Studies. As a Founding Member of Mediators Beyond Borders, he has trained Liberian refugees, Ghanaian attorneys, UN staff in Sierra Leone and Peace Network in Iraq.



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