Transformative Mediation for Divorce: Rising Above the Law and the Settlement


by Dan Simon

March 2011

Dan Simon

(Originally published in TRANSFORMATIVE MEDIATION: A SOURCEBOOK – RESOURCES FOR CONFLICT INTERVENTION PRACTITIONERS AND PROGRAMS” (J. P. Folger, R.A.B. Bush, & D. J. Della Noce, eds.), NY: Association for Conflict Resolution & Institute for the Study of Conflict Resolution, 2010.   (Order online at www.transformativemediation.org)


Abstaining from providing legal advice and resisting the urge to problem-solve, transformative mediators offer divorcing couples an essential service: providing authentic support for any discussion they choose to have, helping them arrive at greater clarity, and improving their sense of connection with each other.  While these conversations often lead to a comprehensive divorce settlement, their primary value extends far beyond the terms of the agreement.
This chapter is organized around the questions that divorcing couples tend to discuss in transformative mediation sessions as they struggle to overcome their feelings of powerlessness and disconnection from each other: 

  • whether to get divorced,
  • how the relationship got to its current state,
  • how to manage the divorce process,
  • whom to involve in the divorce process,
  • how they want their relationship to work now, and
  • what the terms of the divorce agreement should be.

I’ll discuss how a settlement-focused mediator’s typical focus on the achievement and the terms of an agreement can interfere with improvements in the couple’s interaction.   And I’ll explain how the transformative mediator’s support of the full breadth of the couple’s conversation can lead to genuine improvements in the couple’s interaction.  To help illustrate the differences between a settlement-focused approach and a transformative one, I’ll refer to my own experiences as a mediator, as I have moved more fully to a transformative approach (see Folger, et al, 2010, pp. 31-50).

I realize that my focus on contrasting these two approaches to divorce mediation may strike some readers as problematic and even potentially divisive.  I’m well aware that the first edition of The Promise of Mediation evoked such reactions when it contrasted the transformative and problem-solving models (see, e.g., Williams, 1997).   However, I’ve found that much can be understood by the methodology of contrast, and all of the comparisons made below are based on my own experience – working with both approaches to mediation over the course of my career – and on references in the mediation literature.  In any event, my intention is not to use comparisons in order to disparage the settlement approach, which some clients may indeed prefer, but rather to explain in a the most practical and concrete way, for those who are interested, how one experienced divorce mediator has found the transformative approach successful in providing clients a very helpful and satisfying experience in the mediation process.

A First Question: Whether to Get Divorced
I was originally trained as a settlement-focused mediator.  When I attended sessions as an intern, the mediator who trained me would begin the sessions by asking each spouse: “Are you of the opinion that the marriage should end at this time?”  He would pose the question first to the partner who most clearly wanted the divorce, or the “pro-divorce” spouse.  The pro-divorce spouse would typically respond, “Yes.”  The mediator would then ask the same question of the other spouse. Very often, the answer would reveal some ambivalence.  Then the mediator would explain that Minnesota is a “no-fault” divorce state.   Therefore, he would explain, if one spouse wants a divorce, there is no need to prove anything about the breakdown of the relationship. In Minnesota, he’d say, you’re legally entitled to get a divorce if you want one.  In essence, he was telling the pro-divorce spouse that he or she was going to get the divorce and telling the reluctant spouse, “This divorce is inevitable; the law supports it; resisting it is futile.” .... Please click here to download a pdf of the entire article.



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Biography




Dan Simon writes the blog for the Institute for the Study of Conflict Transformation. He is a national leader in the field of transformative mediation.  He practices and teaches it in Saint Paul, Minnesota.  He's trained mediators throughout the country for the U.S. Postal Service, the Institute for the Study of Conflict Transformation, and as an Adjunct Professor at the Hofstra University School of Law. He serves on the Minnesota Supreme Court's ADR Ethics Board, is the Immediate Past Chair of the Minnesota State Bar Association's ADR Section; and he serves on the Board of Directors of the Institute for the Study of Conflict Transformation. He has been the director of Twin Cities Mediation since he founded it in 1998. He helps with divorces, parenting differences, real estate issues, employment cases, business disputes, and neighbor to neighbor conflicts.



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Website: www.twincitiesmediation.com

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