Billy Joel sings It’s a Matter of Trust and doesn’t that apply to almost everything we do as mediators? Some attend advanced mediator trainings to find the latest magic tricks to break impasse. But without trust none of these tricks work; unless, of course, you attended the Harry Potter School of Mediation. Yet trainings, beginner or advanced, spend little time exploring trust and its import in the mediation process.
Let’s break down trust into three parts:
Trust in the process.
Trust in the mediator.
Trust between the parties.
Trust in the Process
How do we establish trust in the mediation process? Do parties enter the mediation trusting the process? If not, how do we instill trust? Let’s exclude mediation “frequent fliers” such as lawyers, insurance representatives, and the like who regularly attend mediations.
Why should a first-time user of mediation trust the process? What do they actually understand about the process? What do they think will happen? Perhaps their lawyer prepared them. Or not. Perhaps they Googled mediation? Or, maybe a family member attended mediation? Regardless, many people attend mediation with some degree of apprehension, even if they are hopeful of resolution.
The mediator can do many things before the session to establish trust in the process. Your website may provide informative material that will be helpful to a party. Your engagement letters or emails should demonstrate that you are a professional and provide clarity as to logistics, parking, directions, cost, and other aspects of the process. You should walk into your mediation environment as if you are a first-time user. Is your environment welcoming? Does your staff communicate well and make people feel welcome? Initial impressions communicate preparedness and professionalism and a genuine interest to help.
Trust in the Mediator
Trust in the mediator is essential. How does the mediator create “trust capital?”
Almost every contact the mediator has with a participant is a moment in which trust is earned or lost. The following is a short list of how to earn or lose trust capital:
1. Be prepared. Everything you do in advance of the mediation to be prepared develops confidence in the mediator and earns trust. Show that you have read what has been sent and demonstrate preparedness.
2. Be focused. On the day of mediation, only the mediation matters. Do not be distracted. Avoid your cell phone. Let the participants feel you are entirely dedicated to resolving their conflict. If the participants feel that commitment, you will earn their trust.
3. Promise to listen, and then do so. If I have one absolute rule, it’s every party has the right to tell their own story in their own time without interruption. If you promise to listen and fail to do so, you lose all your trust points. Demonstrate, through restating, that you have listened and understand; you will have developed a solid foundation of trust.
4. Be attentive to everyone in a particular room and do not ignore anyone. Mediators sometimes walk into a caucus room with many people. Be sure you know who everyone is and what role they play
5. Let everyone in the room feel engaged. Initially you may not know who the decision-makers are. You want to earn trust with everyone. Anyone who is ignored will not trust the mediator or the process.
6. Never criticize or ridicule the participants in the other room. The folks in your room will wonder what you say about them in the other rooms and you will lose trust.
7. Under-promise and outperform. Don’t make promises you cannot keep and do not unrealistically raise expectations or hopes. The mediator with the steady hand earns trust.
8. Demonstrate calm under fire. A mediator earns many trust points at the most negative moments (and they happen all the time) in the process. The mediator who remains calm, urges patience, and helps the parties find their way out of the woods earns trust.
9. Be empathetic and caring. Parties who believe their guide cares about them during their journey will trust and follow their guide. Even more, parties who feel this want the mediation to be successful and feel more invested in the process.
10. Some parties will test you. Do not overreact or take the bait. These sometimes tense moments are trust tests that you very much need to pass.
Trust Between the Parties
Finally, what about the trust issues between the parties? How does broken trust impact the resolution of the conflict?
A perceived or real breach of trust may be the driving force in many conflicts mediators confront. We see this especially when there are existing relationships, be they personal, business, employment, etc. For convenience, I break breaches of trust into two groups, i.e, trust broken by mistake or negligence, and trust broken purposely.
A party may believe trust was broken purposely when in reality it may have been broken by mistake or accident. In these cases, mediation really earns its stripes because the process may result in an evolution of thought about how something bad happened. By digging into the genesis of the problem, the mediator may unearth that miscommunication, mistake, or unintentional error caused the problem. Through enhanced and managed communication, the aggrieved party may come to the same conclusion. Then the pie of potential solutions expands, possibly restoring trust and the relationship, or at the very least marginalizing the exacerbating factors of the conflict. Of course, hearts and minds may not always change but the pursuit remains worthy nonetheless.
Purposeful breaches of trust are trickier and more difficult. Mediators inevitably meet parties who readily acknowledge they engaged in certain acts, feel entirely justified in their behaviors, and are entirely unapologetic. The aggrieved party is less forgiving, or not forgiving at all, and often has an interest in punishing the offender.
In these cases, trust may be irretrievably broken and attempting to restore trust may be a fool’s errand. In these trust cases, empathy and acknowledgement of these hardened feelings may be all that a mediator can realistically do—unless the aggrieved party has a religious or spiritual obligation to forgive under even extreme situations. The focus often becomes the benefits from moving on from the conflict, and an understanding of what the continuation of the conflict is doing to the wellbeing of the party. Parties respond favorably if they know the mediator understands a breach of trust is involved and how that impacts the parties.
Billy Joel’s song was about the impact of trust on personal relationships (I recall he had some difficulties in that regard). Mediation is a PERSONAL services profession. Trust runs like a river through almost everything we do as mediators; when you achieve trust, even the most difficult problems and conflicts may be solved.
About the author:
Eric Galton has mediated more than 7,000 cases since 1989. He has also served as an Arbitrator in over 100 cases. Galton has been named a Texas Superlawyer in ADR from 2005 to the present, and is a Past President of the International Academy of Mediators. His sixth ADR book, Stories Mediators Tell,was published by the ABA in 2012. A member of the Academy of Distinguished Neutrals, Galton is also a credentialed distinguished mediator by the Texas Mediator Credentialing Association.