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Mediator As Medium:
Reflections on Boxes—Black, Translucent, Refractive, and Gray
Editors’ Note: One of the U.S.’s most experienced mediators here discusses a striking difference between his own view of one critical feature of practice, and that of most of his peers. Most high-end litigators and their clients, he argues, have found most mediators to be anything but transparent as to their own thinking processes, even while pressing the parties to be more transparent about theirs. Brazil discusses the pluses and minuses of this way of working, offering his own take on transparency as an alternative. Delving further into the motivations, however, he concludes ultimately that his own practice is a bit less transparent than he thought—more “gray box” than either black or translucent box. The resulting reflection, stands as one of the most transparent discussions of a mediator’s motivations and methods offered by a prominent practitioner.
A couple of years ago, a “high-end” litigator who had represented one of the parties in a caucus-dominated mediation I had hosted told me that my approach was very different from the approach taken by other mediators he had used in high stakes cases (he measured “stakes” by the amount of money involved). He said that other mediators remained “black boxes” throughout the process—meaning that what they were thinking and how they were going about trying to move the parties toward settlement remained shrouded in mystery, entirely hidden from the other participants’ view. He was quite surprised (maybe even unnerved) by how freely I disclosed and discussed what I was thinking, about what I thought was happening in the negotiating process, and about how various behaviors or “moves” the parties were considering might affect (positively or negatively) the health of the mediation process.
The metaphor of the mediator as black box was new to me. [NDR: Gadlin et al., Metaphors] It got me thinking about the pluses and minuses of degrees of openness by mediators. As I ruminated about this, I extended the metaphor to include “translucent box” mediators and “refractive box” mediators. It occurred to me that it might be useful for negotiators to use this set of metaphors as one tool to help understand the ranges of roles that mediators can play, to identify the essential character of the approach a mediator is taking as a specific mediation unfolds, to anticipate more accurately the effects that different mediator styles or approaches may have on the character of the mediation process, and to make more refined judgments about the kind of mediator, or mediator behavior, that is likely to fit best the circumstances of particular cases, circumstances that include, of course, the personalities, negotiating styles, and expectations of all the participants in the process. [NDR: Honeyman, Working with Mediators]
Learning by Acknowledging Distances Between Theory and Practice
Before proceeding with this exploration, however, it is important to squarely acknowledge that the role that a black box mediator plays, and the character of the process he or she conducts, diverges radically from the vision of a mediator’s role and the mediation process that many mediation theorists would endorse. [NDR: Love & Stulberg, Using Mediation] To advocates of the most philosophically attractive, humanistic forms of mediation, the black box process is not mediation at all—but a perversion produced by unfettered adversarial instincts, primitive values, and a runaway capitalist culture. These are important points—but it also is important not to ignore the sizeable corner of negotiation reality in which the behaviors and expectations of the participants do not follow the models that we theorists wish they would. Moreover, by examining this black sheep of the mediation herd, we might gain some insights into, and elevate our honesty about, the more widely endorsed forms of mediation with which we are most philosophically comfortable.
Nature of and Nurture Through the Black Box Approach
According to the lawyer who introduced me to the black box metaphor, mediators in his high end cases generally play their own analytical and process cards very close to their vests. They do not disclose their own views about the substance of the parties’ positions under the law and evidence, about what the other parties are thinking or communicating to the mediator in their private caucuses, or about the participants’ unde....
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Brazil, W. 2014. Reciprocal Coaching to Reduce the Risk of False Failure in Mediation and Support from Social Science for Coaching Ideas. 29 Ohio State Journal On Dispute Resolution 167.
Webster’s New Collegiate Dictionary, 1980, s.v. “refraction.”