Transparent mediation: taking clients backstage

What I might call a spoiler, Alan calls transparency.  And over the past year or so, he’s been piloting an approach to mediation called, appropriately enough, transparent mediation, along with our colleagues Elena Sapora and Nivedita Gutta.

We use a  facilitative approach to mediation at the New York Peace Institute — with some transformative techniques thrown in. (I’ve written here about how we gleefully mix up styles).  So, a typical mediation session may look like a free-flowing conversation, but it is undergirded by a multi-staged process and a toolbox of skills.   In order to keep up the conversational flow, we tend to not reveal to the parties the techniques we are using. (We don’t say “I am now reframing what you said, so as to de-escalate things a pinch”), nor — with some exceptions — the stages of the process (we don’t say “after you speak interruptedly, I shall summarize your statements, and then gather information, after which we’ll generate options, prioritize and assess them, and work to build an agreement and/or greater understanding”).

Alan, Elena and Nivedita thought there may be a value in telling clients what we’re up to in the mediation process.  One motivation behind this was to allow for skill-building within the mediation session — e.g. teaching clients how to reframe, reflect, summarize, etc. — in addition to modeling those skills.  This sometimes happens in caucusing, but rarely in full session.  Another motivation was to show that we’re not being manipulative or employing subterfuge; to build trust, we’ll let them look under the hood, and tell them what the process will look like.  Like a doctor showing you an x-ray.

As my colleagues were starting to experiment with this idea, they came across an article by Michael Moffitt, “Casting Light on the Black Box of Mediation: Should Mediators Make Their Conduct More Transparent?”  Moffitt speaks of process transparency, i.e. when mediators share their strategies (“now I’m going to summarize what you said”), and impact transparency, to explain to clients why they used a particular technique (“by summarizing, we can aim to ensure you’ve been heard”).

By the way, we gave a presentation our transparency experiment at the ABA Dispute Resolution Section Conference, only to find Dr. Moffitt in the audience.  To our relief, he was pleased with our application of his ideas.  Alan published an article for on our use of transparent mediation, and since I’m not doing it justice within the limitations of a blog entry, check it out here.

I have to admit, I was initially skittish about the whole transparent mediation thing, and here’s why:

–Just because you can do, doesn’t mean you can teach.  Transparent mediation allows the mediator to teach participants how to use skills.  When a journalist asked French tennis pro Rene LaCoste to explain his signature serving technique, he responded “I throw ze ball in ze air and zen I hit eet.” Mais bien sur. Transparent mediators need to feel comfortable imparting skills in addition to deploying them.

–It may seem patronizing to clients if we “educate” them during the mediation.  Also, one runs the risk of becoming an authority figure in the process, which is antithetical to our “it’s not about you” mantra.  So, the transparent mediator should be humble and cautious in deploying the approach — e.g. by asking clients’ permission to try out new skills.

–Clients may, ironically, feel manipulated.  When I was a kid, I wandered backstage at Disneyworld and saw Minnie Mouse sans costume head smoking a cigarette.  I felt bamboozled and hoodwinked; I didn’t land on Space Mountain — Space Mountain landed on me. So, the transparent mediator needs to be clear in explaining the intention behind revealing the process.

— It could interrupt the flow of the process and slow it down.  Transparent mediators need to be careful not to stop a productive conversation in order to insert a lesson on active listening or whatnot.

I still think these are real concerns, but with the right skills and level of self-awareness, they’re manageable.  Also, we needn’t see transparent mediation as an either/or paradigm.  In “standard” facilitative mediation, we occasionally use transparency, e.g. in explaining why it may be a good time to build an agenda.  A mediator can selectively, as needed, explain various points, or throw in a skill-building piece here and there. Transparency can be a tool as well as a full-blown process.

Upon greater self-reflection, I admit that my resistance to the process was somewhat ego-driven.  As much as “it’s not about us,” it can feel pretty good to be a magician — and we often talk about the “magic” of the process.  Why would the Great Sardini show the audience the hidden compartment in the saw-the-lady-in-half box?

Stepping back from this, I realized it shouldn’t matter whether clients see us a magicians, wizards, jedi masters, or anything other than someone to provide a safe space for a tough conversation.

I’m now convinced that the process can work, with the proper safeguards and training. Also: Bruce Willis is really a ghost in the movie The Sixth Sense.


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