in Twin Cities
By Michelle Lore | October 29, 2007
michelle.lore@minnlawyer.com
Minneapolis attorney Dan Simon earlier this month became the state’s first certified “transformative mediator.” Simon earned this distinction by fulfilling the requirements set forth by the Institute for the Study of Conflict Transformation, a group founded in 1999 to study and promote understanding of conflict and intervention processes from the transformative perspective.
Although transformative mediation has been around for more than a decade, many lawyers have still never heard of it. It is based on the premise that the disputing parties themselves are best able to decide whether and how to resolve their dispute. Unlike traditional mediation, the mediator’s job is not to get the parties to reach an agreement, but instead to support them in their efforts to communicate.
“Conflict results in extreme alienation from the other side,” said Simon, who first began incorporating transformative mediation into his ADR practice nine years ago. “Transformative mediation addresses conflict at its most fundamental level.”
Kenneth Fox, the director of conflict studies at Hamline University School of Law, also favors the transformative mediation model as a means of dealing with conflict. “Conflict is often what interferes with our ability to work through things constructively,” he said.
Mediation Models
The traditional, or problem-solving, approach to mediation is geared toward generating a mutually acceptable settlement of a dispute, while the transformative model encourages communication and strives to change the ongoing interaction between the parties in a positive direction. The parties in traditional mediation talk about their underlying interests and what it is they “need” to resolve the conflict, Simon said. Accordingly, most problem-solving mediators define their role as getting the parties to agree to a settlement.
But if the mediator simply focuses on “hammering out a deal,” he or she doesn’t address other important issues, like what led to the conflict in the first place, said Simon. In addition, traditional mediators often provide the parties with an evaluation of their case, which serves as an incentive for them to remain in a destructive conflict mode. According to Simon, this inevitably causes the parties to continue to feel threatened by each other.
The goal of transformative mediation, on the other hand, is to foster the parties’ empowerment and mutual recognition, which enables them to more openly approach their current problem as well as potential future problems.
Empowerment enables the parties to define their own issues and to seek solutions on their own. Recognition enables them to see and understand the other side’s point of view and why he or she seeks a particular solution. Consequently, transformative mediators don’t push for settlement but rather help the parties to help themselves.
Transformative mediators understand and are intentional about their influence on the mediation process, Fox explained. “Their role is to help parties reach their own decisions, not shape the decisions the parties make,” he said.
A transformative mediator’s job is to support the conversation people need to have to resolve their conflict on a long-term basis, Simon said. “Transformative mediators support parties in what they want to say.” The “goal” of transformative mediation isn’t settlement, but many times settlements result anyway, according to Simon.
Learn more about the benefits of transformative mediation.
The Process in Use
While the ideas underlying the transformative mediation have been around for decades, the concept as a dispute resolution method really began taking hold in the mid-90s with the release of the book “The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition” by Baruch Bush and Joe Folger.
A lot of mediators resonated with the book, Simon continued. “Many thought to themselves, ‘They described the phenomenon we see in mediation.'” Currently, there are fewer than 35 certified transformative mediators in the country, and many of them are not attorneys. According to Simon, the process does not involve an evaluation of one’s case so a legal degree is not necessary.
People turn to lawyers to help with conflict, but lawyers often don’t address the core aspect of what the conflict is about, said Simon. Instead, the conventional wisdom of lawyers is that they simply need to find a resolution for the parties.
A Postal Stamp of Approval
While traditional ADR practitioners have not rushed to the transformative mediation model, it has been in wide use by the U.S. Postal Service, which has adopted the process as its exclusive method of mediating employment discrimination claims. Moreover, according to members of the Institute for the Study of Conflict Transformation, the method is also a model for the federal Transportation Security Administration, the Department of Homeland Security, several states and even some corporations.
“A growing number of organizations are recognizing the value of the transformative process,” said Fox. According to the Postal Service’s website, REDRESS — Resolve Employment Disputes, Reach Equitable Solutions Swiftly — is a voluntary alternative dispute resolution mediation program offered to employees as part of the organization’s equal employment opportunity complaint process. The program’s use of transformative mediation supports improved communication between supervisors and employees, and avoids unnecessary litigation. The parties meet with an independent impartial neutral third party who supports them in discussing and resolving their disputes. Using the transformative model of mediation, the parties attempt to change their ongoing interactions in a positive direction.
According to Simon, the Postal Service’s implementation of the transformative mediation approach in 1998 helped establish it as a “known” concept. Simon believes that more than 100,000 transformative mediations have taken place through the U.S. Postal Service’s REDRESS program since its inception and that in nearly 80 percent of the cases, the complaints are closed and no further action is necessary.
While Simon has traditionally used the approach in family law cases, particularly divorce matters, it can be — and is — used successfully in other areas as well, as evidenced by the REDRESS program. Nonetheless, Simon said it’s been difficult to instill the concept into other areas of law, primarily because lawyers seem to want to stick with the more traditional methods of dispute resolution.
The medical-malpractice area would be an obvious arena for the transformative mediation model, said Simon. Neither the families nor the doctors involved in those cases, walk away from the traditional mediation process satisfied with the outcome, he noted.
“Transformative mediation gets to the core of what the conflict is regardless of the subject area,” said Simon. “I’m frustrated that it hasn’t taken off more quickly.”
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Mediators with a commitment to the practice of transformative mediation can apply for certification by the Institute for the Study of Conflict Transformation, Inc. Certification is based upon a mediator’s successful completion of the Summative Assessment Process developed by the Institute.
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The 10 Hallmarks of Transformative Mediation
The U.S. Postal Service, which utilizes the transformative model in mediating employment disputes, has posted on its website the 10 “hallmarks” of the process, as identified by Robert Baruch Bush and Joseph P. Folger in their article “Transformative Mediation and Third-Party Intervention.” Those hallmarks are:
* “The opening statement says it all.” Describing the mediator’s role and objectives in terms based on empowerment and recognition.
* “It’s ultimately the parties’ choice.” Leaving responsibility for outcomes with the parties.
* “The parties know best.” Consciously refusing to be judgmental about the parties’ views and decisions.
* “The parties have what it takes.” Taking an optimistic view of parties’ competence and motives.
* “There are facts in the feelings.” Allowing and being responsive to parties’ expression of emotions.
* “Clarity emerges from confusion.” Allowing for and exploring parties’ uncertainty.
* “The action is ‘in the room.'” Remaining focused on the here and now of the conflict interaction.
* “Discussing the past has value to the present.” Being responsive to parties’ statements about past events.
* “Conflict can be a long term affair.” Viewing an intervention as one point in a larger sequence of conflict interaction.
* “Small steps count.” Feeling a sense of success when empowerment and recognition occur, even in small degrees
