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<xTITLE>Perception and Transparency in Mediation</xTITLE>

Perception and Transparency in Mediation

by Phyllis Pollack
September 2013

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack
Perception and transparency. Both are very importantin mediations and negotiations but can be so easily overlooked. This was brought home to me recently in a lengthy mediation that I conducted. It involved a commercial lease and the issue was whether money was owed by the tenant to the landlord for back property taxes and if so, how much. As one would expect, the landlord's audit revealed a higher amount owed than the tenant's.

I conducted the mediation using separate sessions. In the landlord's conference room sat one of the owners, the accounting person and the attorney. By happenstance, the owner- a very well educated sophisticated minority woman- sat on one side of a large conference table while her attorney and accounting person sat on the other side of the table. Whenever, I came into the room, I sat in the chair at the head of the table.

During many of my sessions with the landlord, and her accounting person and lawyer, the accounting person did most of the talking, explaining the various spread sheets to me and why the tenant's interpretation of them was not correct. Unconsciously, or as one might expect, I looked toward the accounting person so that my back was slightly turned towards the owner whenever the accounting person and/or the attorney was speaking. Whenever the owner was speaking, I would, naturally, face her with my back slightly turned to the accounting person and lawyer.

The matter did not settle. Suddenly, as we were ending the session, the owner told me in no uncertain terms that she had felt throughout the mediation that I had disrespected her because I had made very little eye contact with her; I had been focusing my attention on the accounting person and/or attorney. Thus, she strongly felt that I disrespected her and she did not like it one iota.

I was taken aback and, apologizing profusely, explained this was not the case at all: I was simply looking a lot in the direction of the accounting person as she had been doing much of the talking throughout the day and that when it came to discussing demands and offers, I did look at her, making eye contact.

While the owner accepted my apology, the incident troubled me a great deal as it came out of nowhere and hit me hard. So... I shared it with a colleague who does a lot of training. She explained that the incident really had nothing to do with me and everything to do with the owner's previous experiences and her perception of those experiences. That is, she had probably encountered many situations previously in which she truly believed and perceived she was being marginalized by others; she carried that history forward into this mediation. So, when I partially turned my back on her and/or spent a large amount of time speaking with the accounting person, she again believed and perceived that she was being marginalized even though as the owner and landlord, she was actually the most important person in the room. My actions in her mind reinforced her opinion that she was not being treated equally and thus not given the respect due. Consequently, at the end of the mediation session, she let me know in no uncertain terms that she did not appreciate the disrespect.

My friend suggested several remedies. One would be to be more conscious of the seating arrangements and request that everyone (parties and their attorneys) all sit on one side of the table or such that I can sit across from them and look at them all at the same time. Another would be to consciously, make more eye contact and conversation with each participant so that each feels that I am sharing my time equally amongst them and/or finally, to be very transparent at the outset by simply explaining that while I may be spending more time speaking with one or more of them, this does not mean that they are being excluded; to the contrary, I very much want to hear what each has to say as each of them is integral to the conversation and to the resolution of the matter. That is, they should not read anything into the fact that I may spend more time talking to one person rather than another.

Perception and Transparency.... Each is very important but so easy to overlook!

..... Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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