Can we live with building confidence in the process?

By Susan Podziba

To me, trust has always been a heavy request – although most will say that mediators seek to build trust with and among parties.  I’ve often tried to see the world through the eyes of a party and wondered: Is it rational to give over trust to a stranger, who may seem nice enough but who has had limited opportunities to prove trustworthiness, especially across the diverse range of stakeholders he or she must engage with?

I’ve taken comfort in foregoing expectations of trust (though of course, I’m always happy to be trusted!) and have landed instead on building confidence in the mediation process.  Yes, they are related, but they’re also different.

Building trust means parties suspend skepticism and take the risks of engaging, accepting limitations, and following the mediator’s lead during negotiations.  Parties may disclose confidential information to mediators (though mediators have to decide whether or not that information is valid and not an effort to win them over to a particular perspective). But how do mediators know when they are actually trusted?

Get notified when new articles are posted to the EDR blog – sign up for our email list »

For me, building confidence in the process is more easily discernable, and it puts more focus on the budding relationships among the parties. How do we know when there is confidence in the process and how do we build it? Building confidence in the process, even without building trust in the mediator can be accomplished by supporting relationships among the parties and clarifying issues, giving parties equivalent opportunities to assert their interests, innovate solutions, and influence the outcome. Here are three examples from my own experiences that reflect confidence in the process:

Back when I was just beginning my career as a public policy mediator, I was involved with developing affordable housing compacts in the Greater Hartford and Greater Bridgeport Regions of Connecticut with Larry Susskind and Howard Bellman.  As with many of my cases then and since, it was a “never been done before” kind of case, which meant that the concept of an affordable housing compact was as foreign to the parties as was a consensus-based process.  Many of the parties, and one man in particular named Mark, came to the initial meetings with the expectation that they “were window dressing for a set of decisions that had already been made.”  When an initial draft reflecting the 29-member committee’s discussions was shared and then revised, Mark was shocked to find his suggestions fully integrated into the document. He said, “I thought this was just window dressing, but what I said is in the draft, so it can’t be.”  Confidence in the process had been created. Mark’s initial skepticism of the process lifted when he saw that he had influenced the agreement.  Did Mark trust the mediators? Maybe, maybe not — I’m not sure it mattered.

During a negotiated rulemaking to develop worker safety standards for construction cranes, the representative negotiators were discussing an issue that hit a dead end – the discussions became repetitive and no new ideas were being generated. In my role as mediator, I decided it was time to table that issue and move on to a new one. But some negotiators, especially Peter, pushed back and said he had more to say about the initial issue and wasn’t ready to let it go. I used my prerogative to move us on with a promise that we would come back to the issue when there was an increased likelihood of progressing on it.  A few meetings later, when a similar situation arose, Peter willingly went along and commented that in the beginning of the process, he wasn’t comfortable letting go of discussion on a priority issue for him, but realized that it worked to move on and return after the dust settled on the earlier conversations.  His confidence in the process, which included multiple touches on an issue, had increased. His initial insistence of continuing to have his say on an issue, even if the discussion was repetitive, gave way to an understanding of the element of the process that helped new ideas emerge by letting time pass before renewed discussion of difficult issues.  Yes, he trusted me to keep my promise to return to the issue, but the resolution that evolved was due to the participants’ ongoing commitment to stick with the process.

Confidence in the process becomes even more critical as negotiators take the march toward closure to finalize the deal, which often means accepting limitations inherent in the situation.

In an environmental justice case, in which I struggled to gain credibility with some participants, confidence in the process came about as each individual made a statement regarding their expectation of success in reaching an agreement. Because of a contracting fluke, additionally needed resources to continue the mediation were likely to be made available only if there was a reasonable chance of success in the form of an agreement. Towards the end of a meeting, one person looked across the table and asked another, “Do you think we will be able to reach an agreement?” The crux of her answer was yes.  The person then continued to ask each of the other 16 participants the same question.  The round-the-table ended with others getting a similar affirmation from the individual who initially asked the question.  The parties’ confidence in the process – not necessarily trust in the mediator – supports their likelihood of reaching an agreement.  Each individual, in a sense, re-committed to the process and to the work of reaching a mutually acceptable agreement.

Yes, you might say in these examples that the parties involved trust the process and the mediator builds that trust. What is the difference?  Trust in the mediator may be furthered when mediators do what they say they will do, hold information in confidence when asked to do so, and treat people with respect and honesty.

But as public policy and international mediators are called into and find themselves involved with increasingly complex and unique situations, getting to trust may be too high a bar to achieve.  In the earliest days of mediation, when the stated goal was to help parties resolve their own conflicts, mediators supported negotiations, and at the end of the case, often watched the parties pat each other on the back and congratulate themselves on their success. The mediators enabled it, but the success belonged to the parties. Perhaps, with increased complexity we’ve come full circle. Mediators can assist parties by building affirmative confidence in the process without trust. If trust builds, it may be an added but not essential benefit.

 

Susan Podziba, Principal at Podziba Policy Mediation, has served as a public policy mediator for more than 25 years. She has designed and mediated scores of cases across the policy spectrum for clients including the U.S. Departments of Commerce, Defense, Education, Energy, Health and Human Services, Housing and Urban Development, Interior, Labor, and Transportation, the U.S. Environmental Protection Agency, U.S. Senate, U.S. House of Representatives, U.S. Institute of Peace, United Nations and The World Bank. She is author of Civic Fusion: Mediating Polarized Public Disputes (2012), Our Cities: From Corruption to Participatory Democracy (2017) and numerous journal, magazine, and newspaper articles on public policy mediation.

Susan is director of the Sacred Lands Project, which was founded in conjunction with the MIT-Harvard Public Disputes Program, and is currently a faculty member for the Harvard Negotiation Institute senior executive course, Advanced Mediation Workshop: Mediating Complex Disputes