The Creative Solution: A Matter of Trust

The Creative Solution Table of Contents

Summary:

This chapter discusses the significant challenge of trust in family mediation. Chip details two cases illustrating major trust breaches and explores various approaches mediators use to address these issues, including normalizing clients’ feelings and differentiating between trusting a person and trusting the process. Rose emphasizes shifting focus from blaming the offending party to achieving beneficial outcomes, minimizing the need for interpersonal trust while fostering trust in the mediation process itself. He concludes by contrasting mediation’s focus on collaborative solutions with the adversarial nature of traditional litigation.

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Chapter 15: A Matter of Trust

By the commencement of most family mediations, the parties have experienced a significant (and sometimes monumental) breach of trust. Two cases that I had last year were extremely challenging examples of this. In the first case, after the basic settlement was developed, the wife found that her husband had provided her with a phony copy of their joint tax return in which their prior year’s income was understated by 200%. In the other case, the husband was in gender transition and, during the course of the mediation, changed from his male persona to her new female persona, as the prerequisite to the eventual surgery. These clients had major trust issues. In both instances, however, the parties stayed with mediation and ultimately entered into a successful settlement agreement. But it wasn’t easy.

Responding to trust issues is one of the most challenging tasks for a mediator. There are a number of different approaches that can be employed to address the problems that the loss of trust creates. One is to normalize the experience. This can serve several effective purposes: The client is helped to understand that his or her feelings are appropriate to the circumstances; the mediator has an opportunity to establish rapport by demonstrating empathy; and the client’s feelings are separated from the client’s sense of self, so those feelings can be identified, examined and evaluated for their potential consequences to the client’s process. Since trust issues are present in most mediations, it can be effective for the mediator to simply preempt those issues by talking about “trust” and the mediation process prior to the issue even being brought up by the clients. This may function as another demonstration of the skill capacity of the mediator.

An expanded approach is to identify types of trust issues that impact the process, in order to contextualize the issue for the clients. These types may derive from a breach of fidelity, a breach of honesty, a breach of promise, a breach of morality, or a breach of integrity, to suggest a few. Because the pain that results from a breach can so dominate one’s emotional landscape, it is helpful to survey the wide variety of breaches that may occur in order to create an awareness of the consequences not of the breach itself, but more importantly, of the consequences of the pain that results from the breach. Typically, the party suffering the loss of trust wants the transgressor to be punished or bear some significant consequences for breaking faith. Focussing on the conduct of the guilty party, the ‘innocent’ spouse will likely overlook the real danger to his or her interests. That danger is the consequences that come from making decisions out of one’s hurt or pain. Asked another way, how effectively does the client imagine the mediation process will be if the culpable party does not share the same agenda of guilt or blame?

The critical strategic intervention comes with examining the various trust issues and identifying the consequences of each type. Clients generally ask the question, “How can I work with this person in mediation when my trust has been completely destroyed?”–or words to that effect. I find the following to be an effective answer: “Consider the distinction between trusting the person and trusting the process.” It is unlikely that any meaningful repair can be made to the breach in the interpersonal trust during the limited period of the mediation process. On the other hand, that fact should not preclude the development of trust in the process where that process holds such promise for resolution that is maximally beneficial to the injured party. If trust can be defined simply as promises made and promises kept, then proof of the value in “process trust” will be that promises made in mediation will be both honored and fulfilled. The obvious and predictable consequence for breaching the process trust is that the mediation may be terminated. The more the parties begin to experience small successes in mediation, the more each becomes invested in protecting the process and the greater the risk of losing that investment if the trust in that process is violated.

When discussing the concept of consequences that result from losing trust, it may be helpful to suggest that the clients consult with counsel to ask two specific questions: First, how many settlements has the attorney successfully completed? Second, in how many of those settlements did the attorney actually trust the opposing party or counsel? It is a reality of traditional divorce litigation that the issue of “trust” between the parties is never really addressed nor repaired. It is simply accepted as a part of the conflict environment. While little is done to address it (as a source of the conflict), many strategies are developed because of it. An attorney has no effective legal procedures to protect one client from the perfidiousness of the other in the context of litigation.

In light of that reality, the best strategy that one can employ in negotiating a settlement is to focus on outcomes, agreements and settlements that minimize the need for one party to trust the other. The particulars of this type of approach will vary from case to case. What is generally consistent in all, however, is the fact that a client who sees self-interest in continuing an open, non-adversarial dialogue, has every reason to create and preserve trust in the mediation process.

The Creative Solution Table of Contents

Chip Rose

Chip Rose is highly experienced divorce mediator previously based in Santa Cruz, California and recently moved to Bend, Oregon. Chip founded The Mediation Center in Santa Cruz in 1980 and is certified as a Specialist in Family Law by the State Bar of California Board of Legal Specialization. In a client-centered… MORE