Confidence-Building Measures in Mediation
Daryl Landau & Sy Landau
Originally published in Mediation Quarterly: Fall, 1997

Importance of Trust in Mediation

Trust is a critical issue in mediation. Attempts to resolve conflicts often fail where the parties are deeply suspicious of each other. We will suggest confidence-building measures (CBMs) that practitioners can propose to build trust between parties to a dispute. The concept of CBMs is currently being discussed solely within the field of international conflict resolution, where mediators are employing CBMs to de-escalate conflicts between states. CBMs could also be usefully applied in other spheres of mediation. In any situation where trust is lacking, mediators can use these measures to repair some of the relationship problems at the beginning of the process, and place the parties in a cooperative mindset. Mediators who effectively build goodwill at the start of the process will be more likely to see the process reach completion, and more likely to see the parties fulfill their agreements afterward.

Trust is generally demonstrated by a willingness of parties to place themselves in some position of risk in a negotiation, such as by being open with information sharing. Individuals who are low trusters show a reluctance to participate in creative and cooperative group activities (Zand, 1972). Mediators may find it difficult to get low trusters into the meeting room, and once there they will likely continue to employ tactics of humiliation and sabotage. In such a climate, it is difficult to engage the parties in a win/win process.

It is sometimes argued that trust is not a prerequisite for negotiations, and in fact a healthy dose of skepticism toward one's adversary is advisable. Fisher and Brown advise negotiators to be trustworthy, but not blindly trusting (1988, p. 107). However, they also acknowledge that a lack of trust keeps many from negotiating at all. Moreover, mediators who do not deal with the distrust between the parties will feel themselves increasingly pulled into the world of the conflict, where there are no neutrals, only allies and enemies.

For this reason, the use of confidence-building measures at the start of a mediation process could prove useful. Confidence-building measures are gestures of goodwill made by one party to another, usually prior to engaging in substantive negotiations, for the purpose of gaining the trust of that party. The discussion and application of CBMs originated in the sphere of nuclear disarmament negotiations in the 1970s as efforts to achieve comprehensive agreements failed (Borawski, 1986, p. 9). The concept of CBMs most likely evolved from the negotiating model of Charles Osgood (1966). He recommended that the two superpowers adopt a strategy of de-escalation that he termed G.R.I.T., or Graduated and Reciprocated Initiatives in Tension reduction. Essentially, the G.R.I.T. strategy advises either party to make a unilateral goodwill gesture and wait for the other to respond. Once several exchanges have been made, substantive negotiations can commence. These exchanges are now known as CBMs, and they have become increasingly important tools in resolving international disputes. Confidence-building measures played an important role in the Middle East peace process. Sadat's famous trip to Jerusalem, which made possible the Egyptian-Israeli peace treaty, remains one of the outstanding goodwill gestures of all time.

In the literature to date, much of the discussion of goodwill gestures assumes the context of a traditional negotiation with no third party. In this context, the parties themselves control the exchange of gestures. Experimental evidence suggests that these gestures should be offered unilaterally and unconditionally by one party at a time, that they should involve risk to the offeror (to prove sincerity), and that they should be unanticipated by the receiver (Pruitt and Carnevale, 1993, p. 147). However, the risks are very high with unilateral gestures of this kind. An untrusting adversary would be just as likely to interpret the gesture as a ruse, a sign of weakness, or dismiss it as meaningless. Some gestures may be inappropriate and cause offense to the other party. For these reasons, a neutral third party could be quite useful in overseeing the exchange of gestures. The mediator would help to ensure that the offers are appropriate and are interpreted positively by the other party.

The manner in which CBMs would be exchanged in a mediated process would differ from a traditional negotiation process. In Charles Osgood's G.R.I.T. strategy, one party would begin the process with a small gesture, and then wait for the other side to reciprocate. In a facilitated process, however, the emphasis should be on the symmetrical exchange of CBMs for two reasons: symmetry, asking both sides to make roughly equivalent gestures at the same time, helps maintain the mediator's neutral image; second, parallel and coordinated CBMs give parties the assurance that their gestures will be reciprocated, and therefore embolden them to make more significant moves.

Examples of CBMs

CBMs can be grouped into four general categories: 1) those that demonstrate a willingness to talk; 2) those that demonstrate a willingness to listen; 3) those that demonstrate a willingness to meet the needs of the other party; and 4) those that demonstrate a willingness to improve the long-term relationship with the other party. Below are set out some concrete examples of CBMs, with some illustrations from our own personal experience and that of others. These examples should be used merely as guidelines, and should not hinder the creativity of the mediator in designing particular CBMs for a given context. When considering possible CBMs, the mediator should search for gestures that one side could make at minimal cost, yet would mean a great deal to the receiving party. The mediator ought not to confuse CBMs with concessions, and pressure the parties to give up something that is important to them.

1) Demonstrate a willingness to talk:

A good place to start is by asking both parties to make a clear statement to each other about why they would like a peaceful and collaborative settlement of the conflict. In particular, they should emphasize the costs of continuing the conflict. The mediator could ask both parties about the stress they have suffered from the dispute, and about their inability to resolve the dispute through more adversarial means. Without an admission of the destructiveness of the conflict, each side is free to impute less noble motives to the other's participation in the negotiations.

2) Demonstrate a willingness to listen

Showing a willingness to listen is a confidence-building measure of considerable importance. The parties should be encouraged to demonstrate a willingness to hear all of the other party's grievances, and not to react defensively. For example, in a recent case involving a dispute between a manager and staff, the staff was very skeptical of the manager's ability to change her aggressive managerial style. However, the manager demonstrated a genuine interest in hearing the personal grievances of the staff. We coached the manager to listen without comment, and to thank each person after he/she had spoken. The manager's willingness to listen was seen as a very positive step by the staff.

3) Demonstrate a willingness to meet the other's needs

One family mediator has invented an imaginative technique that she calls "Traded Assurances" (Blades, 1985, p. 89). Isolina Ricci asks each party in the first mediation session what the other might do to undermine the mediation. She then poses the follow-up question, "What might he/she agree to do that would let you feel you could trust him/her?" Any commitments the parties make to each other are then written up as agreements that both parties can sign, thus becoming their first mediated agreements.

Often there are immediate issues of conflict that are exacerbating the conflict between two parties. These issues do not go to the core of the dispute, but so long as they exist, they will continue to fuel the conflict. The mediator should try to obtain some short-term agreement to remove some of these irritants. If progress is quickly made on small issues, that builds the confidence of the parties for resolving larger issues. In another case involving a conflict between a manager and staff, the staff quickly raised a concern about the manager's approach to conducting performance reviews. When the manager agreed to suspend the performance reviews until the issue could be dealt with in mediation, it marked the first step toward breaking down the staff's distrust.

4) Demonstrate a willingness to improve the relationship

The most basic confidence-building measure for healing conflicts is the apology. Most everyday conflicts are resolved with apologies, yet mediators have not made sufficient use of them. Of course, there are difficulties. First, apologies might bring the connotation of blame. Second, they could be dismissed as insincere. Third, exchanges of "I'm sorry" might seem like a trivialization of the conflict. All of these concerns can be addressed with the appropriate techniques.

Rather than expressing culpability, apologies ought to express recognition of, and regret for harm suffered by another in the past, and a willingness to try to avoid causing such harm in the future. From the information provided about the history of the dispute, the mediator should select small incidents that were particularly hurtful to one side or the other. In caucus, the mediator should ask the party, "Was there anything you might have done to handle the situation better?" The mediator should assist the parties in preparing a written statement to deliver orally in the mediation session. The parties should be instructed to say only "Thank you," and to make any further comments privately to the mediator at a later point.

Once these steps have been taken, the mediator should assess the parties' readiness to commence substantive discussions. The mediator may well need to do more work on the relationship issues before moving ahead. CBMs need not replace other techniques for dealing with relationship conflicts. Often, however, the parties will not be willing to invest the money and time to deal fully with these issues. Particularly in divorce mediation and in three-hour civil mediations, money and time are scarce resources. It is here that CBMs can be really effective to quickly place the parties in a problem-solving mindset.

Intractable conflicts cannot be resolved with great leaps. They require small steps and time, time for the disputants to alter their image of the other. Mediators in the international arena have realized for some time the importance of transforming the exchange of messages between adversaries that reinforce these stereotyped images. Conflicts in divorce, workplace, or neighborhood cases can involve the same issues of hatred and distrust as international conflicts. Therefore, mediators at the community level can employ the same technique of using CBMs, albeit in altered form, to assist them in their difficult mediations.

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