Institute for the Study of Conflict Transformation by Dan Simon
Why hasn’t transformative mediation swept the world of litigated disputes with represented parties? A new video reveals that there’s no good reason. While the transformative approach has succeeded in the US Postal Service workplace mediation program, and while some community mediation centers and family mediators have embraced it, the realm of civil litigation continues to be dominated by far more directive approaches. The ISCT’s latest training video shows why transformative mediation can and should be used when there are lawyers involved. A clip from the video is available here.
In the video, Jody Miller, Certified Transformative Mediator and Executive Director or the Mediation Center of Dutchess County in Poughkeepsie, NY, demonstrates the transformative approach in a construction case in which both parties are represented by lawyers. Miller shows how a transformative mediator supports all of the participants in making decisions about both content and process. In this case, Miller’s method allows for highly constructive conversation around the following issues:
“Why are we here?”
Early in the mediation, the participants share different perspectives on this question. According to the plaintiff, the parties are there because the defendant has refused to talk to her about her problems with the building he constructed. According to the defendant and his lawyer, the reason they are all there is because a lawsuit has been started by the plaintiff. Those different perspectives on why they are there fit with their different preferences about how the conversation should proceed. The plaintiff wants the defendant to speak; the defendant wants his lawyer to do the talking, as the lawyer is the expert on legal matters. It quickly becomes clear to all present that, although there is a pending lawsuit, an essential factor in that lawsuit is the plaintiff’s frustration with the defendant’s non-responsiveness.
Change of Game Plan
The defendant and his lawyer have planned for the lawyer to do all the talking. The plaintiff says early on that she wants to hear from the defendant himself. In a private meeting between the defendant and his lawyer, they change their game plan. The defendant realizes that he wants to speak up for himself; and the lawyer appears to realize that it will be helpful for the process if the defendant speaks up.
Because the mediator allows the participants to choose what to say and when, the participants gain important information about each other. The defendant learns just how angry and frustrated the plaintiff is; and the plaintiff learns both that the defendant will honor his commitment to do his work well, but that he, at this point, thinks his work has been sufficient. These sorts of tough messages are the ones that make some lawyers believe that parties should be kept separate and that the mediator should deliver the bad news to each side. This demonstration shows that the information gained directly from the opposing party is far more relevant and helpful than any mediator’s message could be.
A Mutual Plan and a Softened, Cooperative Tone
By the end of the 1 hour, 20 minute session, the tone has changed. The plaintiff is less angry; the defendant is talking freely; and the lawyers are working together. The participants also come to an agreement – to retain a neutral expert to give an opinion about the cause of the damage to plaintiff’s building – and to suspend the litigation. And the plaintiff expresses her hope that they will continue to work well together; and the defendant expresses genuine appreciation of the plaintiff’s efforts. Both parties also joke about their preference to let go of their lawyers and the associated costs.
Transformative Mediation More Effective
In the commentary section at the end of the video, the lawyers who had played the roles as lawyers explained why they thought transformative mediation is likely to be very appealing to some lawyers. They observed that, in this process, the focus was very much on the clients’ perspectives. Because of that focus on their perspectives, the clients left this mediation feeling good about the process and the outcome. The lawyers thought it was likely that the parties would give their lawyers credit for that feeling. One of the lawyers observed that some lawyers are more focused than others on valuing the client’s perspective; and those lawyers would find transformative mediation particularly satisfying.
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