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How Can the Presence of a Mediator INCREASE Party Self-determination?

by Dan Simon
June 2017

Institute for the Study of Conflict Transformation by Dan Simon

Dan Simon
When discussing different forms of conflict intervention, the various processes are sometimes listed in order of increasing party control.  Here is a typical way of listing the best-known interventions:
  • adjudication
  • binding arbitration
  • non-binding arbitration
  • med-arb
  • arb-med
  • evaluative mediation
  • facilitative mediation
  • negotiation
Often adjudication, that is, a judge making a decision, is listed as the approach with the least party control.  In that approach, all aspects of the process and the outcome are generally controlled by the law, judges and lawyers.  The next intervention on the list is usually binding arbitration.  That process is similar to adjudication, but the parties have slightly more control in that they may have some input into selecting the arbitrator(s).  Non-binding arbitration is next, because the parties have the choice at the end of the arbitration whether to accept or reject the arbitrator’s decision. Med-Arb or arb-med are hybrid approaches where, in whichever order, both mediation and arbitration occur as part of the same process.  Next comes evaluative mediation, in which the mediator attempts to persuade both sides to compromise and often controls the communication between the parties by keeping the parties separate and delivering messages himself.  Facilitative mediation is intended to give parties more control, by giving them greater input into the content of the process, while the mediator still takes responsibility for making decisions about the process.  Negotiation is often listed as the approach with maximum party control because there is no neutral party present, so the interaction is essentially all up to the parties.
 
So where does transformative mediation fit in?
 
I would argue that transformative mediation provides more party control than any of the interventions listed, even negotiation.  The transformative mediator’s primary focus is on supporting party choice.  In any conflict and in any sort of intervention, it is common for parties to feel that they have little control.  In fact one of the symptoms of intense conflict is that experience.  Parties feel coerced by each other and/or by the situation.  While any of the other sorts of conflict intervention can worsen that feeling, transformative mediation’s goal is to enhance parties’ opportunities to make choices.
 
For example, a transformative mediator may start a session by saying, “where would you like to start?”  And the intention behind that question would be genuinely to let the parties know that how they start the process really is their choice.  If a party then asks, “Well how are we supposed to start?” a transformative mediator might answer with something like, “It is entirely your choice.  Sometimes people like to start by telling the story of how they got here.  Other times parties have questions for each other that they want to ask.  Sometimes people want to set some ground rules for how the conversation will go.  And there are many other possibilities It’s really up to you.  What are your thoughts about what you’d like to do first?”
 
The transformative mediator’s intention to consistently remind parties that they are in control, as well as the mediator’s constant commitment not to interfere with parties’ choices, creates a process where parties feel a greater sense of control than they would even with no intervenor present.  It may seem counterintuitive that adding a 3rd party can increase the amount of control that the disputants have, but in the case of the transformative mediator, the parties wind up making more choices, being more aware of their options, and taking more control of the situation.  In that sense, transformative mediation is different from all of the other listed processes.
 
People in conflict often report that they feel that the situation is “out of control”.  Most conflict interventions address that experience by having professionals take control.  While the situation then becomes controlled, it is not controlled by the parties.  The parties in those processes still have no control.  The unique advantage of transformative mediation is that parties go from feeling the situation is out of control, to feeling that they have control of the situation, while in the other approaches, the parties have even less control than they did before the intervention.

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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