Excerpted from a conversation between Robert A. Baruch Bush and Joseph P. Folger, co-originators of the transformative approach to mediation, and Victoria Pynchon, a Los Angeles commercial mediator and litigator.
(Bush): … To be successful a mediator has to encourage the type of cognitive and emotional states that are conducive to changing the quality of the communication and negotiation. Trial lawyers may well wish to play on people’s fears as a way of manipulating their opinions. To be a true alternative to adversarial negotiation and litigation, however, mediation should free people to play by their own rules for the purpose of achieving their own ends – and to do so with clarity and confidence rather than fear and bluff.
(Pynchon): How does a transformative mediator begin to achieve that?
(Folger): By listening very carefully to what the parties are saying to each other and seizing every opportunity to help them move from states of powerlessness to clarity and strength, and from self-absorption to recognition. Remember that conflict creates fear, vulnerability and powerlessless – emotions that create anxiety and impede problem solving. Anxiety is reduced, and often replaced with a sense of competence and self-esteem, when the parties are given the ability to structure for themselves the means of resolving their dispute. And because the means of resolution shapes the outcomes, the result is more likely to be satisfactory to both parties. As the parties begin to regain some degree of control over the conflict, their interaction shifts toward increased clarity, confidence, personal strength, organization and decisiveness. This is movement from powerlessness to strength and clarity.
(Pynchon): How about the self-absorption to recognition part?
(Folger): Remember what we said about states of self-protection, defensiveness and suspicion? We call that “self-absorption.” Once again, it’s a perfectly normal and appropriate stance in an adversarial setting. It’s counter-productive, however, in mediation. The transformative mediator stays alert to shifts in the parties’ discussion that show increasing attentiveness to the other, greater degrees of responsiveness to the other’s position and a greater appreciation for the other’s situation. This can only happen when the mediator allows the parties to express all of their concerns and the full range of their emotions without hindrance.
(Pynchon): So are you saying that transformative mediators want the parties to talk about the case without monitoring by their attorneys?
(Folger): It’s up to the parties. Clients, like children, grow up and want to speak for themselves no matter what others tell them to do.
(Pynchon): How does putting the clients “in control” of the mediation change anything?
(Bush): Well, first of all, transformative mediators don’t put anyone in control – most of all, not themselves. Unlike the evaluative or even the facilitative mediator, the transformative mediator creates an environment in which the parties or their lawyers are given the greatest amount of freedom possible to collectively direct the process of the mediation itself. The parties are in charge of establishing the ground rules, making the agenda, discussing the issues, and, determining what is “in bounds” and what, if anything, is out of bounds.
(Pynchon): If the parties (or even the lawyers) express their true thoughts and feelings without interference by the mediator, don’t the sessions turn into free-for-alls, with heated accusations, even shouting? (Bush): They could. But remember, the parties establish their own ground rules and “no shouting” might well be one of them. We do not, however, discourage strong disagreements. In fact, transformative mediators support the expression of the strongest negative feelings and opinions and never strive to suppress or deflect the discussion to “safer” ground. Surfacing and clarifying sharp differences actually helps parties clarify what they want to do by allowing all sides to come face to face with the real issues separating them. Standing at the edge of the cliff, most people decide they don’t want to jump. Those who do have made the choice freely. But if you hold people back from the cliff, they will keep trying to get there.
(Pynchon): But wasn’t it the parties’ inability to solve their own dispute that brought them into litigation in the first place?
(Bush): Of course. But we believe that “alternative” dispute resolution means what it says. That there is another way to resolve disputes. Something radically different from the adversarial process where the client is effectively side-lined or slotted into the narrative recommended by the attorneys or jury consultants. That process is all about manipulation. Mediation should be about clarity and choice.
(Pynchon): What I’ve heard so far is somewhat vague. Can you put some meat on the bones of the process?
(Folger): Sure. One of the most important principles is focusing on the parties’ negotiation at a micro-level. That means following the discussion among the parties closely enough to help the parties — including the lawyers — to genuinely communicate, not simply posture. Communication and decision-making processes involved in negotiation, even for expert negotiators, are riddled with pitfalls that undermine their quality. This is well documented in the research on negotiations. When unchecked, these pitfalls can block clear decision-making and create “settlements” that leave untapped value on the table and a bitter taste in everyone’s mouth.
Transformative mediators support the communication and decision-making processes on all sides and therefore help to avoid and overcome these pitfalls as the negotiations unfold. In essence, they make the negotiation process less “painful” and more productive, and they do so without insisting that the mediator decide the case.