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How Much Transparency is Too Much?

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{4 minutes to read}  Transparency is one of those “good” words.  People favor transparency and tend to think of it in contrast to secrecy, which is often thought of as a “bad” word.  If you think transparency is preferable to secrecy, raise your hands.  Almost everyone raises their hands, except for those who smell there’s a trick follow-up question coming — which there is.

There used to be a time when large political donors couldn’t hide behind a wall of secrecy.  But really, shouldn’t the well-off be able to purchase the candidates of their choice without everyone having to know?  And wouldn’t limits on contributions be limits on our freedoms? Well, you know the rest of the story….

Transparency can be critically important in mediation.  If people are going to reach an agreement, don’t they need to know what the other side knows and wants and needs?  OTOH…. arranged marriages have a long history, and not all of it bad.  Most of us don’t think of marrying people we don’t know, but such arrangements have worked.  And it turns out many people who choose to get married discover things post-marriage that they didn’t anticipate.  Knowledge isn’t perfect.

Some mediators approach mediation with the idea of “complete transparency.”  All sessions are held jointly and everything the parties and mediator say is heard by all in attendance.  This can have its benefits, even if there are awkward moments.  Working through the awkward moments can create necessary dialogue that otherwise would not take place.  This strategy is generally employed in family or community related disputes, where things left unstated can result in deals that later unravel.  It may take a bit longer, but it can create trust and at the end everyone knows not only the details of a resolution, but why the particular details are what they are.  There are no hidden agendas.

OTOH…. Not everyone entering into a negotiation or mediation feels they can let the other side know everything right off the bat.  They may need time to develop a comfort level with the mediation process and the mediator.  Personally, I encourage transparency but don’t insist on it.  There are several reasons for this.

  1. Comfort level.
  2. People’s positions change during a mediation.

If someone says to the other side their bottom line is X, it’s very hard to change it later on, without feeling they’re appearing weak, or disingenuous.  I never ask people for bottom lines partly for that reason, but if by some chance it’s said only to the mediator, at least the other side hasn’t heard it.

  1. There are things people don’t want to tell the other side.

In a divorce mediation, one spouse may want to complain about the pending ex-spouse.  It can be useful for such complaints to be aired in the open.  But it may also be a question of degree and timing.  Remember the other side has probably been hearing those complaints for years. 

In commercial matters of any kind, mediations often start in a joint session, but generally move quickly to a shuttle diplomacy where each side can say what they want about the other side.  In those separate sessions there’s plenty of space to air grievances with full transparency without generating additional acrimony.  Once the grievances are aired, the details of possible solutions can more readily be explored.  

A party may say something along the lines of “I’d like you not to tell the other side this but….”  Usually, that transparency exists in the safe zone between a mediator and a party. And so far at least, I have never had that sentence end with something like “I’m hiring a hit man if the case doesn’t settle.” 

My guess is no one is ever that transparent.

Gary Shaffer Gary Shaffer
Shaffer Mediation

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An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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