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Mediate.com

Mediation: Why Distinguish Between Models?

by Dan Simon
April 2015

Institute for the Study of Conflict Transformation by Dan Simon

Dan Simon

The conversations I have with mediators about the distinctions between different approaches often go something like this:

Other: All of us mediators have the same goals. We just have different styles. And it’s important for all of us to remain flexible and adjust our styles to what the clients need.

Me: I don’t think all of us mediators DO have the same goals; and I think the mediation experience is very different for parties, depending on what sort of mediator they get.

Other: Well, yes, there can be significant style differences. Retired judges, for example, tend to be evaluative in their approach. I, myself, on the other hand, focus on problem-solving. But even I, though I don’t express an opinion about the case, use a similar technique when I remind parties about the costs and uncertainty of ongoing litigation. Still, all mediators are trying to help people resolve their differences.

Me: So let me explain why I think the transformative approach is very different from either yours or the evaluative mediator’s. Transformative mediators don’t focus on “resolution” as the desired outcome. Instead, we focus on supporting party self-determination in each moment of the session.

Other: Same with me. I believe in self-determination. I’m always working to make sure the parties are involved and are buying in to the solution.

Me: I understand that. But from the transformative perspective, it’s impossible for the mediator to fully support self-determination if the mediator is also trying to resolve the dispute.

Other: Huh? You lost me.

Me: So the transformative approach requires me to keep every possible decision, including decisions about what happens in each moment of the process, in the hands of the parties.

Other: Well I do that too, I don’t make anyone do anything they don’t want to do.

Me: I’m sure you don’t, but I’m guessing you see it as your job to guide the process?

Other: That’s right. I control the process – they control the outcome.

Me: So that’s part of where we differ. I don’t think it’s possible for me to control the process without also having a huge impact on the outcome. So I always let the parties lead the process.

Other: Well what do you do then? They came to mediation because they needed help. You just sit there?

Me: That’s a common misconception. No, I don’t just sit there. It takes complete focus and a lot of skill to pay close attention to the parties and intervene in ways that support their efforts at making their own decisions and at trying to understand each other.

Other: What if they don’t want to understand each other? What if they just want a settlement?

Me: If that’s where they’re at, I support them in doing just that – talking about the terms of a settlement. (Understanding each other is often very helpful in trying to work out a settlement, but, no matter what, the parties in transformative mediation get to decide what to focus on).

Other: So how is that different from what I do?

Me: I’m guessing you ask a lot of questions?

Other: Yes, usually.

Me: So when you ask those questions, I assume you’re trying to help the parties think about their situation, their interests, and creative ways to solve their problem?

Other: That’s about right.

Me: So every time you ask a question with that agenda, you are making a process decision – you are deciding that’s the question that should be focused on at that moment. I don’t want to make that decision for the parties. The transformative approach suggests that those very questions – the questions of what to think about and when – need to be in he hands of the parties.

Other: You know, I took a transformative mediation training once, and I felt like some of those skills were useful, so I still use them sometimes. I like to think I can do it all; I can use transformative skills when that’s what the parties need, and I can be more directive when that’s necessary.

Me: Right, so I’m saying that if you sometimes get directive, or are prepared to get directive, your process is different from mine. The fact that mine will never get directive is part of what I believe makes transformative mediation uniquely empowering.

Other: Ok, but why are you so focused on distinguishing your approach from mine? As mediators, shouldn’t we know how to get along?

Me: Absolutely! I’m all for us getting along! But as a mediator, I also believe in the value of a conversation in which we explore our differences (if we want). And I’ve run into many people who experienced mediation, and found it to be a very disempowering process. Often they’re talking about one of those shuttle diplomacy mediations – and they describe that the mediator simply tried to persuade them to compromise. But I’ve heard others who have been through a Facilitative mediation complain that the mediator controlled the conversation and that the parties weren’t able to focus on whatever was at the core of the conflict. I want people to know I offer something different from that. That’s why I’ve been so explicit that I’m a ‘transformative mediator”. Not that anyone knows what that means, but I want them to know it’s something different from what they may have heard about or experienced with other mediators.

Other: Wow, ok.

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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