Transformative Mediation Blog by Dan Simon
"The normal response of a healthy adult when faced with coercion is to resist." Judge Bruce Peterson of Minneapolis pointed out, in explaining how family courts WORSEN conflict.
We often forget, especially we who are lawyers, that our legal system relies ultimately on coercion to get results. In my law school Creditors’ Remedies class, my professor pointed out that a court order (say, that certain personal property should be returned) could lead to a sheriff showing up at someone’s house "WITH A GUN" to enforce it. The professor meant to remind us that our legal arguments were serious business, which, if successful, could lead to action carried out maybe literally at gunpoint.
This force of law, backed up by full-blown coercive force, is present even in family cases. It is not unheard of for the police to appear at a parent’s house "WITH A GUN" to take a child to the other parent’s house, based on a court order. Most often we don’t hear about it when that happens, but sometimes we do. Remember Elian Gonzalez?
Judge Peterson says this sort of force has no business in family conflict. In his editorial in the Minneapolis Star Tribune a few weeks ago, he described his reasoning that it’s "time perhaps to get courts out of divorce." I sent him an email thanking him for expressing a view that I agree with.
But if not coercion or the threat of it, how else do we help with family conflict? Judge Peterson thinks transformative mediation might be an answer. In response to my email he wrote, "I think of transformative mediation as one of the hopeful tools in this field and believe it will have an ever more important role to play." That email led to an exchange that resulted in Judge Peterson visiting my office, where I showed him a video of myself mediating a parenting dispute. Later he emailed me, "Thank you again for taking the time to show me your process. I am very impressed at the discipline and subjugation of ego it requires. Let’s stay in touch, big changes are coming."
As I see it, it’s ego that sometimes leads professionals to attempt to take greater control of conflict intervention processes, which can result in subtle coercion. The professionals believe and act as if they have the power to change peoples’ attitudes, that they know how those attitudes should be changed, and that it’s ok to do so even if it means subtle coercion.
Judge Peterson appreciated the vast difference between that assumption (that the professional should take over and control the process) and the assumption of transformative mediation, that the mediator should take a supportive role, giving the clients the opportunity to make their own shifts to a better place.
I find it very hopeful that even a judge can appreciate the discipline required and the potential benefits of transformative mediation.
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