From: Minnesota Law and Politics
February 2000
Transformative mediation not only resolves disputes,
but also leaves warring parties feeling all warm and fuzzy
by Rebecca Schmidt
Part lawyer, part counselor, part "Swami," transformative
mediator Dan Simon helps
clients help themselves.
A man and woman sip raspberry tea while relaxing
on an overstuffed love seat in a cozy apartment. They are relaxed and
at ease with each other. The room's soft lighting combined with burning
incense has set the perfect mood for . . . finalizing the terms of the
couple's divorce? Surprised? Don't be. It's simply a typical setting
for a session of transformative mediation, a kinder, gentler approach
to resolving disputes.
According to believers, a little understanding can go
a long way, allowing even the most bitter clashes to disappear in just
a few slightly new-age sessions. And that's not all. The parties can
literally be "transformed" by the process, gaining not only
clarity about what they really want and why but also an arsenal of communication
and decision-making skills that can be used in the next battle that
comes their way.
The Problem with Problem-Solving Mediation
As the courts become increasingly swamped with family matters and civil
suits, many would-be litigants are turning to mediation to defuse their
conflicts. Despite this, the different styles of mediation and the goals
of each approach are mostly unknown to the masses. Even experienced
attorneys shoot "deer in the headlights" stares when asked
to suggest which mediation style would be most appropriate for their
clients. To many disputees, however, the confusion over "which
type of mediation should be used when" just doesn't matter. They
simply want a settlement without having to duke it out in court. This
explains why the "problem-solving" style of mediation is so
popular.
Problem-solving mediation uses a third-party neutral to assist the parties
in reaching a mutually acceptable settlement. The process is designed
to get the disputees to agree; the mediator directs discussion and proposes
solutions. They are the "experts," and while the parties themselves
set the issues for discussion, problem-solving mediators tend to steer
parties away from the areas that could impede negotiations. Thus if
Jane Divorcée brings up John Divorcé's entry into the
mile-high club with Susie Stewardess on last year's "business trip,"
the mediator will discourage talk of the past, rein in flaring tempers,
and focus the parties on moving toward an agreement. All roadblocks
to settlement - such as anger, resentment, hostility, aggression and
bitterness - must be controlled or pushed aside.
While this style of mediation can be valuable in many cases, some disputees
find this approach to be less than satisfying. Take Jane and John. Until
John apologizes for flying the way-too-friendly skies, a "mutually"
acceptable settlement isn't going to happen. Jane needs to hear an "I'm
sorry" from the bottom of John's heart, rather than his wallet,
before any agreement will be truly acceptable. The trouble is that problem-solving
mediation doesn't encourage such exchanges. Jane, therefore, will be
stuck with some major unresolved emotional issues if she agrees to a
settlement before dealing with her underlying anger and hurt. Although
the mediator may proclaim the settlement to be a "win-win"
resolution, Jane will end up feeling like a loser. This is what transformative
mediation hopes to prevent.
Empowering People to Solve Their Own Problems
For parties who, like Jane, are more concerned with getting an apology
than a settlement, transformative mediation is the way to go. This mediation
style has become popular of late, thanks to the 1994 publication of
Robert Bush and Joe Folger's book, The Promise of Mediation, which describes
the transformative approach. Transformative mediation does not focus
on settlement but rather on the "empowerment" of the parties
to make better decisions for themselves. It also trains parties to consider
the views, opinions and feelings of the other. If the parties end up
with a mutually acceptable agreement as the by-product of their empowerment,
great. If not, that's OK, too, as long as the disputees have clarified
their own goals and recognized their soon-to-be ex or former business
associate as a human being.
Since transformative mediation depends on the parties' direct participation
in the sessions, it's crucial that the disputees feel comfortable throughout
the process. Dan Simon, one of the Twin Cities' leading transformative
mediators, has created an informal atmosphere for his clients by holding
the sessions in his Grand Avenue apartment. While his cozy furniture
is a nice touch, Simon knows that disputees won't let their guard down
on the basis of a room's atmosphere alone. He, like all good transformative
mediators, lets the parties set the issues to be discussed during the
sessions and refrains from directing the conversation. His job is to
"follow the parties around," helping them to clarify their
interests and goals. If Jane Divorcée gets emotional, for example,
he's there to encourage discussion of and expression of that emotion,
as both are integral to empowerment and recognition.
Simon, who's been called "Swami" and a "miracle
worker" by his clients, attributes the success of transformative
mediation to the "natural desire to understand one another and
to treat each other fairly." That "natural desire," according
to Simon, is often hampered by the traditional legal process. And he
should know. Growing up in a family of lawyers, and having practiced
law himself, he saw how the emotional issues underlying disputes can
be ignored in an adversarial system. Believing there must be a better
way, Simon went back to school, obtained a master's in counseling psychology,
and made the leap from attorney to transformative mediator. "People
in conflict usually feel defensive and self-absorbed. When I take them
seriously they become calmer and more understanding of each other. So
my goal is to take their concerns seriously and let them do the rest."
Lee Mahoney, a former client of Simon's, can attest to
the wonders of transformative mediation. Having had several not-so-great
experiences with the legal process over a construction contract dispute,
he was willing to try something new. And he's glad he did. Instead of
racking up attorney's fees and going back to court, his case was settled
during one transformative mediation session. According to Mahoney, "there
was a larger emotional and psychological issue that had to be dealt
with besides the legal issues that was bringing me to court. Dan allowed
us to talk to each other. It was mysterious how Dan did it, but he knew
when and how to come in and guide us." Mahoney's experience with
transformative mediation is telling of the impact the approach can have
on the parties. "I believe in the humanity of this process."
Spoken like a truly transformed being.
