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Building Trust During a Negotiation
During a mediation the mediator will look to act as a conciliator in order to build trust and cooperation during a mediation. Doing so increases the probability of achieving the joint objective of a settlement satisfactory to both parties.
Conciliation is the creation and development of a positive relationship between the parties, replacing where possible unnecessary conflict with a positive psychological framework. Acting as conciliator the mediator will endeavour to surmount obstacles such as poor communication and lack of trust.
It barely needs stating that communication is key to an effective negotiation. A more subtle point is that just talking is generally not enough and in fact unless it is done effectively may make things worse and the prospect of a settlement more remote. One commentator has said: “typically a competitive process tends to produce the following effects: communication between the conflicting parties is unreliable and impoverished. The available communication channels and opportunities are not utilized or they are used in an attempt to mislead or intimidate the other…” This has the tendency to produce misunderstandings and misinformation which only reinforce existing preconceptions and positions.
To address these kinds of issues, a mediator may structure communication. This may include what exactly is communicated, how it is communicated, by whom the message is communicated and to whom. The timing of delivery may also be important.
Regarding what is said, a mediator may have a role in coaching a party in what information it would be useful to share in a joint session with the other party. The mediator in this situation will be informed by his knowledge of the other party’s attitudes. He may also reframe information in a way that may diffuse potential tension and misunderstanding. When the mediator himself is in control of what is being communicated, while shuttling between the parties in their private rooms, he may filter what he passes on to only allow information which constructively builds towards an agreement.
Trust is a person’s capacity to depend on the accuracy of another’s statements or behaviour. In the mediation setting trust may be partially or wholly absent. In this situation, the mediator will look to build trust using a variety of means.
Trust in relationships is usually built in increments. Through a succession of promises and consistent actions that reinforce the belief that commitments will be carried out, mediation participants may gradually build a relationship of trust. Mediators may assist them build a trusting relationship by encouraging them to take actions designed to improve their credibility in the eyes of the other. These include:
• Make consistent and logical statements which do not contradict what has been said previously;
• Perform actions that symbolise good faith such as providing for the other party’s physical comfort;
• Place themselves deliberately in a weaker position in relation to the other party so that they incur a minor risk. This demonstrates trust because it places a party’s well-being in the hands of an opponent;
• Ask for help, and in so doing, acknowledging the need for assistance from other participants;
• Refrain from making threats to an opponent or making promises which are unrealistic; and
• Show empathy towards the other side’s concerns, even if they do not agree with those concerns.
For further details please e-mail sChima@adamslaw.co.uk