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Transparency in Mediation

Transparency in Mediation

How can transparency in mediation help overcome these difficult conversations?



Full Transcript

So, two thoughts. In terms of sharing the struggle, one of the things that I have sometimes started doing up front is to frame my role pretty specifically and to say, ‘Your job is to come as you are. You don’t have to pretend you think or feel anything different.’


By the way, I should say something about the kind of mediation that I do. A lot of the mediation I do is what we call ‘uncontained mediation,’ which gives it the aura of an extreme sport. What we mean by that is we think of contained mediation as often court annexed.


So you already know who the parties are. You know what the issues in dispute are. You know how much time you’re going to spend, at least initially, trying to mediate it, etc.


In uncontained mediation, half of the project is often figuring those questions out. Who are the players I need to talk to, to even understand what the issues are, and then who should be at the table and by the way, how do we structure that process because it’s not necessarily everybody for the whole time. We may be sequencing.


In terms of framing my role to get buy-in for people to even participate in that process, rather than saying, ‘We’re going to see if we can settle this or find a solution’. what I’ve started saying a few years ago is, ‘My job is to help you guys have a candid and high quality conversation so that at the end of the day, you either find a solution or an outcome or you don’t, but if you don’t it’s not because you didn’t communicate well.


We’re trying to remove the communication barrier so that we can then actually just deal with all the other challenges and barriers here. At the other end, ideally you have better working relationships even if you still don’t agree or have a solution, which will help you down the line.’


So, for me, being transparent is almost a reminder to me as much as to them that settlement isn’t the only outcome but there are some other benefits of the process and we’re figuring it out together, whether there’s something to be agreed upon and acted upon.


I think that there’s a second identity thing, at least for me. You can say whether this is true for you, which is, when I was little, I looked at all the grown-ups, at least if they were good at their job, I assumed that they were in a state of knowing and confidence all the time.


It has taken me a really long time to feel comfortable with the fact that a lot of the time, particularly in a challenging mediation, let’s say, I sit in a state of thinking to myself, ‘I have no idea what I’m doing here. I have no idea what to try next because this is not working.’ or, ‘So-and-so would know what to do here but I don’t.’ Sometimes I’m asking myself, ‘What would Doug do here? What would John do here.’ Just to try to push my own boundaries of what I can even think of.


I think that state of feeling out of your depth and uncertain that you’re up to the task, itself is an identity issue, right? It will trigger, ‘Well, if they hired somebody who knew what they were doing, they would be in a lot better shape’. Even if, intellectually I know, there aren’t that many people in the world – we’re a small community – who have this much experience trying to help people.

About the mediator

Sheila Heen Mediator Harvard

Sheila is an experienced negotiator and mediator and a Founder of Triad Consulting Group. Sheila is also a Lecturer on Law at Harvard Law School and has spent the last twenty years with the Harvard Negotiation Project, developing negotiation theory and practice. She specializes in particularly difficult negotiations – where emotions run high and relationships become strained. Sheila is co-author of the New York Times Business Bestsellers Dif... View Mediator