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Law Professor Transformed

by Dan Simon
September 2014

Institute for the Study of Conflict Transformation by Dan Simon

Dan Simon

Professor Sherry Colb, who teaches criminal procedure and evidence at Cornell Law School, took a training in transformative mediation this spring and it blew her mind. You can read the full text of the article she wrote about it here. In her article Colb explains the fundamentally different assumptions that underly the legalistic paradigm as compared to the transformative paradigm. Here are a dozen of the insights that the training inspired in her:

1) Transformative mediation can be much more than a way to avoid court – it can be both empowering and connecting.

2) Transformative mediation can address any sort of conflict, not just ones that are in litigation.

3) Transformative mediation can lead to both parties feeling much better about the situation, regardless of whether they decide to reduce an agreement to writing as part of the process.

4) Transformative mediators participate in a conversation, as opposed to a formal process with formal components, such as opening statements.

5) Participants in transformative mediation have control of the process.

6) “Knowing that someone (perhaps only the mediator [who is committed to impartiality and confidentiality]) will hear what they have to say in a nonjudgmental and open manner” helps parties feel safe in expressing themselves.

7) When people settle a lawsuit without transformative mediation, they are far less satisfied with the settlement and the process.

8) The transformative perspective assumes that when a party asks a 3rd party “what do you think?”, the party is expressing their sense of weakness; and the most helpful response is to support the party as she finds her own strength (that is, the third party does not answer the question, but rather acknowledges the party’s uncertainty).

9) Litigation, on the other hand, assumes that parties need an outsider to answer their question. Transformative mediation assumes that people have what it takes to answer their own questions – that assumption becomes a self-fulfilling prophesy.

10) The transformative mediator’s support of the conversation leads to clarity for the parties and often to full-blown changes in how they see the situation, each other, and themselves.

11) Litigation appeals to our childhood fantasy that Mommy or Daddy will fix things when we’re in conflict, by making our sibling understand that we are right. Transformative mediation is more realistic – it leaves the decisions in the hands of those whose perspectives are at the center of the conflict.

12) In transformative mediation, “parties routinely learn that they are far more competent and capable of figuring things out than they could have previously imagined.”

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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