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Mediator as Medium: Black Box? Transparent? Refractive? Gray?

ABA Section of Dispute Resolution

Wayne Brazil

At the close of a mediation in a business case not long ago, one of the lawyers told me that my approach was new to him. He said other mediators he had worked with tended to remain “black boxes”—meaning that what they were thinking remained largely a mystery. He had been surprised by how freely I disclosed and discussed what I thought was happening in the negotiating process and how various behaviors or moves the parties were considering might affect the health of the mediation process.

This got me thinking about the pluses and minuses of degrees of openness by mediators. When you mediate, are you a “black box” in the eyes of the parties? Or, at the other end of the metaphoric spectrum, are you a “transparent box”? Or does the way you handle your role fall somewhere along the continuum between these extremes, so the parties see you as a “gray box” or a “refractive box”? Do you try to adjust the degree of your transparency from case to case, depending on the personalities and conduct of the parties? In some mediations, do you become different boxes at different junctures—and, if so, why and to what effect?

Black-box mediators. Black-box mediators keep their cards close to their vests. Apparently, many sophisticated lawyers and clients are comfortable with the black-box approach. They want their mediator to remain in control of the process because they believe that it is by capitalizing on the mediator’s experience that they have the best chance of striking a deal.

They want a mediator who has developed good instincts about what is going on beneath the verbiage and about how much play there might be in the positional joints. They want mediators who can “read” carefully between the lines, who can spot and accurately interpret subtle, oblique signals, who will “hear” everything parties tell them in caucus with a skeptical, filtering ear, and who simply will not believe what parties say their bottom lines are. Parties who are acculturated to the black-box approach don’t expect their mediator to explain what she is thinking or what informs her approach at any given juncture.

Black-box techniques can be more threatening when negotiators believe that some or all of the parties and their lawyers will be trying to “game” the mediator. Gaming can include actively misleading the mediator about anything that might be a factor in the negotiation dynamics.

Transparent-box mediators. “Transparent-box” mediators would, in theory, freely disclose and discuss what they are thinking, what they see happening in the negotiating process, and how various behaviors or moves the parties consider might affect the health of the mediation process.

Adherents to even the purest forms of transformative/facilitate mediation, however, are likely to find it very difficult to be completely transparent. In mediations that include any caucusing, the mandate of confidentiality can be one challenge. As mediators move between caucuses, parties may ask them to keep certain information confidential. Fear of being misunderstood or of having to take too much time off the mediation clock to make sure that the motive behind or the implications of their messages are not misunderstood also can push back a mediator’s pursuit of transparency.

The transparent ideal can be further compromised by the advocate’s conduct. Parties often assume that the people in the other caucus are not telling the mediator everything relevant to their case valuation or to their settlement decisions, or that they are telling the mediator things that they don’t really believe or that are based only on unsupported hope. In these senses, each side may believe that the other side is trying to manipulate the mediator to gain leverage in the negotiations. Each side assumes that the other side will remain, in some measure, a black box to the mediator. So, even if the mediator’s promises of confidentiality did not limit the light that flows through her from one side of the dispute to the other, each party might well believe that the managed and manipulated “flow” of inputs to the mediator makes the promise of transparency a mirage—and a potentially dangerous one, at that.

Counter-productive transparency. I aspire to be a transparent mediator, but I realize that some means I use to try to illuminate the negotiation process might push its reality deeper in darkness, at least when the parties are self-consciously examining the negotiation process and looking for ways to find leverage in it. In pursuit of transparency, I often try to explain to the people in one caucus things that have happened, sentiments that have been expressed, or moods that have prevailed in the other caucus.

Being more open about the situation in the other room than a black-box mediator would be, however, could have the perverse effect of making each group I caucus with less open with me. So, savvy and cautious negotiators who watch me talk more openly than other mediators do about the situation in the other room might well react by trying to disguise their actual thinking or true feelings.

The “refractive-box” mediator: Ubiquitous and valued but not transparent. Regardless of where on the spectrum between black boxes and transparent boxes they might place themselves, most mediators are likely to act as refractors.

“Refraction” is a term that attaches with uncanny exactitude to roles mediators often play: redirecting, reframing, and reducing the velocity of some emanations from one party to another. The refraction function is perceived as essential and invaluable by many participants in mediations in litigated cases. The assumption (by the parties) that their mediator is performing her refraction function can further cloud a transparent box. Even parties who have no experience with, or who would have no affinity for, the black-box approach often expect and want their mediator to refract. They expect their mediator to have a better feel than they do for the personalities and dynamics in the other room, and therefore, to be in the best position to determine which kinds of messages would be most productively received at which points.

When black-box negotiators meet transparent mediators. How are lawyers and clients who have been acculturated to black-box approaches likely to react when they encounter a mediator who plays his or her role with greater transparency? Some negotiators probably are most comfortable with a black-box approach by their mediator because they know they—and the other side—also will be black boxes. Such parties might even fear a mediator’s analytical meddling. A mediator who offers substantive feedback to the parties that is based on intentionally incomplete or misleading inputs from both sides might end up unintentionally skewing the negotiations in a direction for which no one is prepared, thus upsetting the artificial balance necessary to make parties feel comfortable enough with final offers and demands to make a deal.

There is also a distinct possibility that parties who have been “acculturated” to the black-box approach will infer that a mediator who adopts an open style doesn’t understand how negotiations among sophisticated parties in big cases really work.

Lawyers who think of themselves as sophisticated negotiators and have had considerable experience negotiating in similar kinds of cases with similar kinds of adverse parties might feel that their ability to capitalize on their skills and instincts would be compromised by an intellectually open and energetically engaged mediator.

Cynical negotiators might fear that a mediator who is purporting to use a transparent style is actually just using different techniques to game them. They might fear that the mediator’s transparency is a device for gaining access to their most sensitive and pivotal information and concerns, a verbal smoke screen intended to hide what is in fact a form of black-boxism. Parties who fear this kind of subtlety are likely to be even more secretive about their real views and positions.

 

ABA Section of Dispute Resolution

This article is an abridged and edited version of one that originally appeared on page page 22 of Dispute ResolutionWinter 2017.

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Wayne Brazil is a mediator, arbitrator, and special master with JAMS. He previously was a magistrate judge in the U.S. District Court for the Northern District of California.

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