Sources of Trust for a Mediator
Collaborative mediation requires that a certain level of trust be rebuilt between parties who stopped trusting each other long ago. The parties also need to develop trust in you and in the mediation process. Trust enables the parties to reveal the information necessary to create value where none appears to exist, to brainstorm outside-the-box resolutions, and to persist in negotiations in good faith when agreement seems hopeless.
There are three different sources of trust and this article explains how to tap these sources to foster an atmosphere of trust and overcome distrust.
You can’t make one party trust another, but you can put certain protections in place to help the parties feel more secure. For example, setting ground rules helps the parties feel more comfortable knowing that certain bargaining tactics won’t be tolerated during the mediation. Likewise, contingency agreements, as discussed in the following sections, can help alleviate a party’s fear of signing on to an agreement.
Calculus-based trust is a low-level form of trust that results when someone carefully calculates that he has more to gain than to lose. When two parties consent to mediation, they usually have calculus-based trust in you and in the process because they believe they have more to gain than lose by having the dispute resolved through mediation.
If they adhere to the process and work patiently with you to achieve a desired result, the potential benefit in resolving the dispute is significant — the result satisfies their needs, solves a burdensome problem, and perhaps even mends a relationship. In a litigated dispute, a successful mediation also saves both parties considerable time and money.
To boost calculus-based trust, set ground rules and enforce them. Ground rules remove some of the potential risk from the cost side of the cost/benefit equation. The promise of confidentiality also boosts the level of calculus-based trust by ensuring the parties that nothing they reveal in mediation can be used against them in a court of law or in an administrative proceeding.
In other words, if either party considers the disclosure of information a potential cost of mediation, he can now remove that from the equation.
To reinforce calculus-based trust, enable the parties to trust but verify. For example, if one party makes representations during the mediation to convince the other party to accept a proposal and the other party doesn’t trust those representations, consider suggesting that the agreement be made contingent upon proof of the representations.
If the person making the representations is lying, this calls his bluff and may result in further negotiation. If the representations are valid, the contingency agreement allays the concerns of the dubious party.
You can significantly enhance calculus-based trust by erecting safeguards to anticipate and prevent breaches of trust. Those safeguards begin with the establishment and subtle enforcement of the ground rules and end with contingency agreements that enable the parties to trust but verify.
Knowledge-based trust is based on the information each party has that enables her to foresee the probable consequences of a proposed solution. If a party knows that the other party always keeps her word, for instance, then she’s likely to trust that person when she makes a promise. If one party makes representations that the other party knows are true, trust is a given.
Prior to mediation, knowledge-based trust is usually at a low point; the knowledge the two parties have of each other from past dealings usually works to undermine trust, not deepen it.
To test knowledge-based trust, ask questions about each party’s knowledge and experience. For example, you may ask a party in private caucus, Is this the type of agreement she has shown herself capable of abiding by in the past? If the answer is no, you might follow up by asking, Are there other inducements available to ensure that she’ll abide by this agreement in the future?
You may also use contingency agreements to offer assurance to a party who lacks the knowledge or certainty of the ostensible facts the other party presents. Making the agreement conditional upon proof of those facts is often an acceptable substitute for knowledge-based trust.
Identification-based trust is the trust among people who share values and interests. As mediator, reminding the parties of their shared values and interests often helps them move forward with greater trust for each other.
In business conflicts, for example, you can often remind businesspeople of their shared values — the recognition that they can’t recover sunk costs or factor them in to the value of any deal going forward; the principle of pragmatism that values rationality over emotionality (a sound business decision over revenge, for instance); and the shared view that planning for a productive future is better than fighting over the details of an unproductive past.
In disputes within religious organizations, identification-based trust is also often rooted in shared values — accountability, confession, forgiveness, and reconciliation, to name a few. Within ethnic communities, you have to discover the values that the parties share so you can remind them of the interests they have in common.