Comments: Can Transformative Mediation Work In Commercial Litigation? A Conversation With Joseph P. Folger And Robert A. Baruch Bush

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matueny , Perth wa   10/10/08
Degotiation and dispute resolution
please send me alternative dispute resolution which ADR about negotiation and dispute resolution thanks

Gregorio Billikopf, Modesto CA  gebillikopf@ucdavis.edu     05/17/05
Empowering parties
I am a great fan of the work carried out by Joseph P. Folger and Robert Baruch Bush, and their book The Promise of Mediation. They have brought so much good to the field of mediation. I notice, however, that many people have reacted quite negatively--or shall I say defensively--to JF and RBB's work. Perhaps Bruce Lowry's comments explain it best (see post related to this article below), the notion that one size fits all. I have been working on a model that foments party empowerment: Party-Directed Mediation (see article in mediate.com). How much empowerment may be given, of course, does depend on time pressures, type of conflict, and the personalities and skills of the parties involved. Too many mediators have assumed that the parties desired less involvement and just wanted the presenting problem fixed. This article by VP had some very interesting points which merit comments, but I better stick to this general idea on this post. And the idea is simply this: mediators, if they have the time and the interest from the parties involved, can dedicate time in the process to help the parties become better negotiators so they can better deal with future conflicts. I welcome emails directed to me at gebillikopf@ucdavis.edu.

lou ann , CA   05/13/05
For those interested in more information (e.g. the question about empowerment) you might check the website for transformative mediation at www.tranformativemediation.org -- also Joe and Baruch have recently revised the 1994 book that began this discussion: New and Revised - The Promise of Mediation, 2005, published by Jossey Bass and available at the website.

Leo  , Honolulu HI   05/13/05
Owner/small contractor/supplier impact of it's just about the money.
When I encounter an "entreprenurial (contractor)CEO of the company built with his investment, his "bare hands" and his sweat equity" cave in for the sake of the "business relationship", to corporate owner demands, for whom it is just about the money, it makes me wonder how long that contractor is going to be around. They don't last very long. If it's a novel technology with potential it is lost. I wonder if it is in the owner's best interest who won the money fight but lost the maintenance and developmental source of the technology he just inherited. I also wonder about my longevity as a mediator to this client base if those results are repeated in the "deals" I facilitate.

Victoria , Los Angeles CA   05/11/05
It's Not Personal
I obviously agree that commercial litigation often seems to be "just" about money, requiring a facilitated or evaluative style. I know Joe's feelings on this as well, i.e., he disagrees vehemently with me -- believing that clients (even Fortune 500 companies) want and deserve a genuine alternative to competitive -- even collaborative -- negotiation; that when we attorneys "sideline" them, we deprive them of the power of conflict resolution, transformation or transcendence skills they have in abundance. Maybe this is first a client counseling issue. Seldom do we take the time to learn what personal/career/corporate well-being litigation threat really means to general counsel; mid-level managers; claims representatives; risk managers; or even the entreprenurial CEO of the company built with his investment, his "bare hands" and his sweat equity. It's not that there ARE no "people" issues -- it's that we litigators simply don't know WHAT the people issues ARE; or that we don't know what the internal corporate interests are -- as opposed to the legal interests that is our expertise -- those issues, facts and available solutions to the narrow legal "problem" that is our rightful domain. We ALL have horror stories. Mine involved an action I worked on for a very short time while an associate in a boutique Beverly Hills law firm. My firm represented Guess in litigation with Jordache over all manner of issues, including intellectual piracy by insiders. I do not know how much the two parties spent on the litigation, but tens of millions is the right range. After turning one another in for tax evasion and customs violations; after having every board of directors meeting reported by a Court reporter and attended by a judidical "provisional" director, the parties sat down without their lawyers, settled the case behind their backs and then sued all of the law firms. The moral of that story: maybe we just need to recognize when we're DIS-empowering our clients rather than fretting over whether we should "empower" them. My clients have almost invariably been FAR MORE POWERFUL AND FAR MORE SUCCESSFUL than I have ever been. They have been "titans" of industry; film producers; garment designers; inventors of engineered products and founders of multi-billion corporations. And yet, they often let me lead the way with little input from them (except as to the "legal issues" I'm addressing) because the "legal" turf was mine. Now I see that the legal turf is a small circle of limited rights and remedies within a much larger circle (say the solar system inside the entire known universe) of interests and injustices that need not even be TIED to rights or remedies. This is where my already powerful clients need to be brought into the game. Perhaps our first job is to transform our own understanding of the conflicts we are "managing" and whether our own role in their management should be expanded to include non-legal solutions. If we expand our own role, perhaps we'll be able to tap the incredible intelligence, wit, creativity and courage our clients possess in abundance for the purpose of solving the conflict at hand. Sorry for the lengthy stream of consciousness, but these are issues much on my mind as these are the fields in which I've labored for the past 25 years. I truly believe we're on the far edge of a paradigm shift and I'm terrifically excited to be part of it. Vickie

Leo , Honolulu HI   05/11/05
Pre-Litigation
Even pre-litigation project related mediation involving owner/contractor disputes often comes down to who pays to execute the technmical fix to complete a construction project. However, here the first objective is to complete a project. I feel that mixing the technical issues and their resolution with the commercial, who pays and how much, is often a bad mixture. I will separate the mediation into technical and commercial issues and use different mediation approaches matched to phases in a mediation. In internal corporate project team disputes, again pre-litigation, I believe in gauging managements view of empowerment of a project team and work within those boundaries, supporting how I can. It seems that transformative mediation concepts apply in this kind of environment.

Bruce Lowry, Dayton OH  blowry1@woh.rr.com     05/11/05
Court-ordered mediation
I agree with Joe and Baruch wholeheartedly when it comes to mediations involving human beings. However, I run into situations quite frequently with court-ordered mediations, usually much later in the process than I would have liked, involving two large corporations arguing about nothing other than money. There are also severe time restraints (I usually have three hours maximum, more often two and a half) for the session. No one cares about empowerment, emotions, etc. - they just want it over with. In those cases I use facilitation, and occasionally (if asked by an attorney or party for my opinion) I'll be evaluative. I've had a good settlement rate and, to the best of my knowledge, a good satisfaction rate from attorneys and clients. Certainly the transformative method works well in most situations, but with all due respect there are times when other methods are called for. One size may fit most, but certainly not all.

Leo , Honolulu HI   05/05/05
For practiconers in the field of teams and transformative mediation
For those of us interested in practicing in the use of transformative mediation principles in team environments could you share a few practical insights into what it takes to succeed? Selling points to potential clients? Many thanks, Leo

Joe    05/04/05
Use of Transformative Framework in Teams
Thank you for the question about how the transformative framework assists in team conflicts. I have actually built an approach to team development based on these core principles and have conducted team interventions for the past 10 years in corporate settings. It is a facilitative approach and has had solid success. I see team development work as another outlet for the use of transformative mediation skills. I have designed a training around this approach to team development and offered it at our recent national conference in Philadelphia. It will be offered again in San Jose in June. Please contact Kim Kooyers if you are interested kim@oneroofcom.com Joe Folger

Victoria Pynchon, Los Angeles CA   05/04/05
Project Teams & Empowerment
I'll let Joe Folger or Baruch Bush respond to this as I have not worked with in-house teams and that's right up Joe's alley; Baruch as well. In my mediations, the parties often "get" that they will regain the power lost to them ONLY by being accountable for their contribution to the dispute. If the parties acknowledge they are accountable, they must also recognize that they've had the POWER to alter the situation for the WORSE. When they recognize they already possess the power to alter the situation, it is a short step to realizing (and exercising) that power to make the situation better. I believe there are exercises in team-building that can achieve this result on a group basis and ask others for their input.

Leo , Honolulu HI   05/04/05
Empowerment
I am interested in the use of mediation in pre-litigation internal "project team" corporate disputes where relationships are critical. Can you provide any insight on the use of transformative mediation in such situations and the concept of empowerment?