Institute for the Study of Conflict Transformation by 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.”
Jeff Krivis has been a successful commercial mediator in the greater Los Angeles CA area for fifteen years. He is an adjunct professor at the Straus Institute for Dispute Resolution...
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