What is Transformative Mediation?

By MediationNI,

Category: Mediation

Differences Between Transformative and Problem Solving Mediation

Guy Burgess and Heidi Burgess

There are many differences between transformative and problem solving mediation. The only similarity is that each uses a third party to assist the disputing parties to begin dealing with the dispute in a new way. What that “new way” is, however, differs considerably from one process to the other. Problem-solving or “settlement-oriented” mediation, which is by far the dominant approach in the field today, is just what the name implies–it is focused on solving a problem by obtaining a settlement.

The settlement-oriented mediator usually explains that this is the purpose at the outset and defines a process that will assist the parties to work toward that goal. All of the mediators actions also are designed to facilitate that outcome. Emotions which might escalate anger and thus prevent a settlement are controlled. Issues that are non-negotiable are diverted, while parties are encouraged to focus on negotiable interests. Mediators tend to discourage a discussion of the past, as that often involves blame which can make progress more difficult. Rather, parties are encouraged to focus on what they want in the future, and develop ways in which their interests can be met simultaneously.

Sometimes the settlement-oriented mediator acts more like an arbitrator than a transformative mediator, proposing a solution and working hard to “sell” it to the parties. (An arbitrator’s decision is binding; he or she does not have to “sell” it. However, the settlement oriented mediator sometimes acts like an arbitrator when he or she takes the role of the “expert,” and comes up with the settlement provisions for the parties.) Settlement-oriented mediators often try to keep the parties moving forward, encouraging them to move from one “stage” to the next as quickly as possible and using a deadline as an inducement to come to an agreement.

Transformative mediators work very differently. They explain in the opening statement that mediation provides a forum for the parties to talk about their problem with a neutral third party present. This can be helpful, it is explained, to clarify the nature of the problem from both parties’ points of view and for developing a range of options available for dealing with the situation. This process should help the clients make better choices about how to proceed and may help them better understand the views of the other person. This understanding may enable the clients to reach a mutually satisfactory solution, or it may suggest other approaches for handling the situation. Thus settlement is presented as one, but clearly not the only possible successful outcome of mediation.

Usually, transformative mediators will then work with the parties to develop goals, ground rules, and a process they want to use. Mediators will make suggestions about process and ask questions (usually to encourage either empowerment or recognition of the other), but they will not direct the conversation, nor will they suggest options for settlement. This is the parties’ job. Bush and Folger describe the mediator’s job as “following the parties around,” helping them clarify for themselves and for the other what their real concerns are and how they want to see them addressed. Sometimes, recognition by the other is all that is really needed to reach mutual satisfaction. Other times, parties must go beyond this to negotiate interests. Interest-based negotiation is, of course, allowed in a transformative process–but it usually shares center stage with the discussion of feelings and relationship issues.

The definition of success also differs in the two kinds of mediation. Typically, settlement- oriented mediation is not considered successful unless a settlement is reached. Transformative mediation, however, is successful if one or both parties becomes empowered to better handle their own situation and/or the parties better recognize the concerns and issues of the other side. Very often, the empowerment and recognition gained by the parties allows them to develop a mutually agreeable outcome. However, according to Bush and Folger, the opposite is not as often the case–the settlement-oriented mediation process does not lead to empowerment and recognition, as it tends to ignore the relationship issues in favor of the narrower and more concrete interests.

Comparison of Transformative and Problem Solving Mediation

Guy Burgess and Heidi Burgess

Note: These are idealized descriptions. Actual mediators will hold these ideas and follow these actions to lesser or a greater degree.

 

  Transformative Mediation   Problem Solving Mediation
         
Assumptions about conflict   Conflict is an opportunity for moral growth and transformation   Conflict is a problem in need of a solution
         
  Conflict tends to be a long term process   Conflict is a short term situation
         
Ideal response to conflict   Facilitate parties’ empowerment and recognition of others   Take collaborative steps to solve identified problem; maximize joint gains
         
Goal of mediation   Parties’ empowerment and recognition of others   Settlement of the dispute
         
Mediator role   Secondary: parties are seen as experts, with motivation and capacity to solve own problems with minimum help   Mediator is expert, who directs problem solving process
         
  Mediator is responsive to parties   Mediator directs parties
         
Mediator actions   Mediator explains concept of mediation, but lets parties set goals, direct process, design ground rules. Makes it clear settlement is only one of a variety of possible outcomes.   Mediator explains goal is settlement, designs process to achieve settlement, sets ground rules. May consult parties about these issues, but mediator takes lead.
         
  Mediator “microfocuses” on parties’ statements, lets them frame issues themselves   Mediator “categorizes” case, frames it for disputants
         
  Mediators allow parties to take discussions where they want them to go; encouraging discussion of all issues that are of importance to the parties, regardless of whether or not they are easily negotiable; Mediators encourage mutual recognition of relational and identity issues as well as needs and interests   Mediators direct the discussions, dropping issues which are not amenable to negotiation (for example, relational or identity issues) and focusing on areas “ripe” for resolution (usually negotiable interests).
         
  Mediators encourage an examination of the past as a way of encouraging recognition of the other   Mediators discourage discussion of the past, as it tends to lead to blaming behaviors, focus instead is on the present and future–how to solve the current problem.
         
  Emotions are seen as an integral part of the conflict process; mediators encourage their expression   Emotions are seen as extraneous to “real issues.” Mediators try to avoid parties’ emotional statements, or emotions are tightly controlled.
         
  Mediators encourage parties’ deliberation of situation and analysis of options; parties’ design settlement (if any) themselves and are free to pursue other options at any time   Mediators use their knowledge to develop options for settlement; can be quite directive about settlement terms
         
Mediator focus   Mediators focus on parties’ interactions, looking for opportunities for empowerment and/or recognition of the other   Mediators focus on parties’ situation and interests, looking for opportunities for joint gains and mutually satisfactory agreements
         
Use of Time   Time is open-ended; parties spend as much time on each activity as they want to. No pre-set “stages” as in problem solving mediation   Mediator sets time limits, encourages parties to move on or meet deadlines. Mediator moves parties from “stage” to “stage.”
         
Mediation: definition of success   Any increase in parties’ empowerment and/or recognition of the other–“small steps count”   Mutually agreeable settlement
       

Folger’s and Bush’s Ten Hallmarks of Transformative Mediation:

  1. In the opening statement, the transformative mediator will explain the mediator’s role and the objectives of mediation as being focused on empowerment and recognition.
  2. The transformative mediator will leave responsibility for the outcomes with the parties.
  3. A transformative mediator will not be judgmental about the parties’ views and decisions.
  4. Transformative mediators take an optimistic view of the parties’ competence and motives.
  5. Transformative mediators allow and are responsive to parties’ expression of emotions.
  6. Transformative mediators allow for and explor parties’ uncertainty.
  7. Transformative mediators remain focused on what is currently happening in the mediation setting.
  8. Transformative mediators are responsive to parties’ statements about past events.
  9. Transformative mediators realize that conflict can be a long-term process and that mediation is one intervention in a longer sequence of conflict interactions.
  10. Transformative mediators feel (and express) a sense of success when empowerment and recognition occur, even in small degrees. They do not see a lack of settlement as a “failure.”

 

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