More FAQ’s from Mediators

Institute for the Study of Conflict Transformation by Dan Simon

 A couple months ago I posted a typical conversation between the mediators who attend my brief presentations and me. You can read that post here. And here is a continuation of that conversation.

Question: This makes sense to me for cases where the parties will have an ongoing relationship. But in the cases I work on, the parties will never see each other after the mediation, so transformation seems beside the point.

Answer: It’s a common misunderstanding that the purpose of transformative mediation is to improve an ongoing relationship. Transformative mediators do not have the agenda to improve the relationship. While transformative mediation may improve a relationship, if that’s what the parties want, the mediator’s focus is on improving the moment-to-moment interaction – the interaction that’s happening during the mediation. While your clients may not want to continue the relationship, they ARE interacting at the time of mediation, if only through their lawyers and a lawsuit. Transformative mediation is likely to improve THAT interaction. That interaction, about the lawsuit, is likely to shift in a way that causes the parties to feel a greater sense of control and to experience a better understanding of the other party. These shifts are valuable in themselves, but they are incredibly helpful to people who are trying to negotiate the terms of a settlement. It is much easier to negotiate effectively when you are more fully aware of your own options and objectives and when you understand better where the other party is coming from.

Question: But I thought you said transformative mediation isn’t about settlement?

Answer: On the contrary, transformative mediation can be very much about settlement IF that’s what the parties focus on. Remember, 80% of the Postal Service REDRESS transformative mediations led to the resolution, withdrawal or abandonment of the complaint after one mediation session. I’m not aware of any convincing evidence that there is an approach that leads to a higher settlement rate than that.

Question: This is confusing. You just got done telling us about how the transformative mediator doesn’t try to get a settlement and that the result is that people feel stronger and more connected.

Answer: Right, “stronger and more connected” is a fair way of saying “empowerment shifts and recognition shifts”. You’re right, that’s what the transformative mediator is focused on. And it turns out that parties who have become more strong and responsive are much more able to talk about and arrive at a settlement that all parties are satisfied with.

Question: Ok, but when I get referrals for mediation, the lawyers don’t tell me that they want their client to become more strong and responsive. They tell me they want to settle the case.

Answer: Great! Those lawyers are picking the right mediator (once you learn transformative mediation) because you’ll provide a process that allows them to focus directly on settlement talks if they want to. With your help, they may find that there are other things they want to talk about, and that THOSE conversations are what enable them to talk effectively about settlement. Regardless, you will help them talk about EXACTLY WHAT THEY WANT TO TALK ABOUT.

Question: So you’re saying that while they talk about settlement, they will have empowerment and recognition shifts?

Answer: It certainly might go that way. Or they might discover that it’s meaningful to tell each other their side of the story of what led to the conflict; or they might want to threaten each other about what their legal arguments will be if they don’t settle. Their ability to choose what to talk about in the mediation is essential to their empowerment shifts and aids in their recognition shifts.

Question: I’m so accustomed to shuttle diplomacy mediation where the mediator helps the parties understand the costs and risks of ongoing litigation. Isn’t there a place for that?

Answer: I gather there’s a lot of that going on. It seems to be well-entrenched. And I wouldn’t want to ban that sort of thing, because, for all I know, it could be helpful to someone somehow. And regardless, I want people to be able to choose their process. But the research I cited in the previous post strongly suggests that those methods generally lead to worse results all around than do methods consistent with the transformative approach.

                       

Dan Simon

Dan is a leader in the field of transformative mediation. He is the author of the chapter on divorce mediation in the Institute for the Study of Conflict Transformation's ("ISCT") TRANSFORMATIVE MEDIATION SOURCEBOOK. He is a Past Chair of the Minnesota State Bar Association's Alternative Dispute Resolution Section. He served… MORE >