The Master Mediator, Creating the Culture of Candor (CCC) in the Community (Web)

This is the eighth installment of The Master Mediator, a periodic CPR web column featuring commentary by Robert A. Creo, describing and discussing mediation room techniques and practice issues.

‘Creating the Culture of Candor (CCC) in the Community’

What I used to call "building rapport," or "credibility" and "trust," can perhaps be best framed as Engagement, Authenticity and Transparency.

I humanize the conflict by engaging the other participants on multiple levels. One level is abstract: I am "The Mediator" which carries with it certain frames and connotations. It is an image that may contain elements of prestige, power or wisdom. It creates an expectation of being aloof and above the fray. Reputation precedes your persona and is part of it.

At the same time, my engagement with the participants attempts to be a one-on-one dialogue via oral or body language communications. I reach out to touch them on a personal and human level. For example, I always shake hands or touch every participant in the process as soon as possible.

I try to be open about what moves I am making during the process. I believe in furthering the transparency of the management of the process. I tell people things I am doing procedurally and substantively. I do this by preamble or facilitative techniques or a simple narrative statement.

I believe transparency enhances engagement and reduces risk. It creates the safer environment based upon interconnectedness. I explain the "why' of lots of things that happen during a mediation. We make "Blink" decisions–that is, decisions described by Malcolm Gladwell in his bestseller--on what to do next. We should say so. Transparency is good. Michael L. Moffitt, a professor at University of Oregon School of Law in Eugene, Ore., has written some excellent pieces on transparency. See, e.g., Michael L. Moffitt, “Mediation ‘Transparency’ Helps Parties See Where They’re Going,” 16 Alternatives 81 (June 1998).

I was taught as a lawyer and mediator to suppress my own emotions. From day one of law school, we are trained how we "feel" is irrelevant to the determination of the law.
But I remember a case I did years ago in Colorado where a 17-year-old girl was driving down the road and smacked into the back of a farm tractor on the road and was decapitated. Her parents left the room when the lawyers gave me the photo of her decapitated head lying on her shoulder. She had almost a smile or beatific expression on her face.  I wanted to burst out in tears.

This I did not do since I was a "professional" and "impartial." Everything about it has stuck with me and has contributed to my change of thinking and actions. 

Now, I cry if it is authentic and natural. At first, this used to disturb the advocates but now it is integrated into the process. A structured settlement broker told me at an American Bar Association in Los Angeles last year how that affected the defendant's evaluation of a later case involving the death of a father in front of his young son in an equipment mishap. The defense risk manager and in-house counsel were repeat players and commented that if the story makes a hardened fellow who has seen it all like me cry, it may be a more compelling case than their committee determined when placing a value on it for settlement purposes. The claim settled at an amount greater than the committee decision.

Speaking of committees, here are a few approaches or tactics to address the mythology of the "committee" which reviews cases for resolution. "The Committee decided this authority" is a refrain common to all neutrals. Some of many approaches:

1) The Committee of 12 or eight or six, do they all come-up with same number on first vote? Did it get white smoke on the first try? There always is an initial divergence among any group of people making a group decision. Juries are usually led by one person. So perhaps is your Committee, especially since it is probably hierarchy. Or there certainly are “firsts” among equals. The "leader" of your Committee will not be on the jury.

2) The only true committee that matters is the jury. If your group could pack the jury pool, great. And you can probably sell that story to lawyer-author John Grisham. Oops, been there, done that.

3) New information learned at the mediation which was not available to the Committee.

4) Just Do It. No group decision is perfect. It is a matter of compromise. We are now in a different process, which places a high value on compromise. As one advocate stated at a recent case I mediated, we are in the real world now, interacting with the plaintiff and counsel, not in a room talking abstractly about a claim’s value.

I strive for authenticity by being honest. Honesty builds trust. Honest narrative statements may be interpreted as being directive or evaluative. There is a tension between expectations of impartiality and authenticity.

Framing was proposed in 1975 by Marvin Minsky. Marvin Minsky. “A Framework for Representing Knowledge,” found in “The Psychology of Computer Vision,” 211--277. (McGraw-Hill 1975). It is defined as a cluster of common ideas about some domain of experience which is activated by processing texts and utterances of certain words. These words have a specific experiential context.

We "spin" or "frame" all the time. It is our prime tool. I am now transparent about how I frame. I come out on the side of authenticity but may soften the frame or use a facilitative method to bring home unpleasant facts, unnecessary risks or to explode mythology about how the legal system processes claims.

Legal Positivism is based upon the concept that law consists of the enforceable commands of government. Law does not depend on the validity of other criteria, such as normative or religious values or natural law. The latter does not override government dictates. John Austin, in his work The Province of Jurisprudence Determined (1832), contended that law is what it actually is, rather than what it should be, and law is defined by reference to its content.

This content is dictated by the sovereign.

At the same time, the James-Lange Theory, proposed in 1885 by William James and Carl Lang, postulates that physiological processes are fundamental to the experience of emotion and precede the conscious perception of emotion. We cry, therefore we are sad, rather than we are sad, therefore, we cry.

Recent work by Antonio Damasio, who is director of the Brain and Creativity Institute at the University of Southern California in Los Angeles, and others, with magnetic image scanning of the brain supports this theory. I suggest reading Damasio’s 2003 Harcourt book, “Looking for Spinoza.”

I want to create a Culture of Candor during the mediation process. Whenever possible, I want to short-circuit the traditional negotiation dance of multiple offer and counteroffer posturing. I believe that credible offers build credibility. I attempt to reject parties' positioning themselves or anchoring the negotiations with low-ball or high-ball opening positions. I ask each participant, "Why make incredible offers?"

I have settled numerous claims on the first offer from defendants. When I have repeat players in the process, this is easier since they trust the process and the mediator based upon prior success.

by Robert A. Creo
The author, a Pittsburgh attorney, is a mediator and arbitrator. He also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a founding member of the International Academy of Mediators (see www.iamed.org), and served as its president between 1997 and 1999. He also is a member of Alternatives’ editorial board.  He can be reached at robertacreo@cs.com.