I often present to mediators for an hour or so on the transformative approach. There are certain questions that come up regularly. Here’s a typical conversation I might have with these mediators toward the end of my presentation.

Question: What if it’s clear that the parties have no ability or desire to see each other’s perspective? We’ve all seen parties like that.
Dan: I actually don’t know that I’ve seen parties like that. While it’s true that I’ve seen parties who, as far as I could tell, over the course of up to a few hours, hadn’t shown any significant increase in understanding each other, that has never been enough to convince me either that they couldn’t or didn’t want to. In fact, I like to be the one person who will never come to the conclusion that a certain party is beyond hope. It’s common for others to make that decision and thereby foreclose opportunities for the shifts to happen; often one party believes the other can’t or won’t shift; the legal paradigm often disregards the potential for mutual understanding. Many mediators assume that the only possible progress comes from a purely self-interested negotiation. My clients, on the other hand, have the benefit of a mediator who will never interfere with the opportunity for them to understand each other.
Question: Isn’t it sort of unethical to keep people in a process that might never help them?
Answer: Yes, it would be. That’s one of the reasons that self-determination remains the central focus of transformative mediation throughout the process. Parties are completely supported in deciding at any point that the process is not for them – the mediator does not suggest that they should try a little longer or that the alternative is worse – nor does the mediator ask questions designed to suggest those things. The transformative mediator acts consistently with complete support for the parties’ choices. If a party says they’re done, the mediator’s answer is “Ok.”
Question: Don’t you lose a lot of clients that way?
Answer: As a matter of fact, 100% of my mediations have ended when the parties chose (unless I ended it earlier because of scheduling issues).
Question: Right, but haven’t you had sessions end early?
Answer: First of all, it’s not my place to decide what early is. Second of all, there have only been a handful of times when a party has ended a session when the other party clearly wished to continue. And in about half of those cases, both parties chose to return for another meeting. So my sense is that my supportive attitude toward ending when a party wants to has not decreased and has probably increased parties’ likelihood of sticking with the process. A process that is truly, completely voluntary throughout is more appealing than one in which there is pressure to continue.
Question: I understand that transformative mediation is intended to be non-directive, but what do you do when the conversation gets off track?
Answer: And what do you mean by off track?
Question: Well let’s say it gets heated, or they keep talking about things that aren’t constructive, or they keep repeating themselves?
Answer: My intention is to support the conversation. I’m there for them to turn to, the moment they aren’t happy with how it’s going. If they tell me they don’t like how it’s going, I’m there to help them process what they’d like to do differently. If they don’t tell me that, I remain present to support what they’re doing, by reflecting and summarizing what I’m hearing. I also check in with them occasionally to remind them that they get to decide how to proceed. But it is not my place to decide that the conversation is off track.
Question: Have you ever had clients complain that you weren’t doing anything?
Answer: Great question! I very much had the fear of that when I started transitioning from a problem-solving approach to a transformative one. In a training where Baruch Bush was the instructor, I remember Baruch saying, “Now if your clients make these empowerment shifts and recognition shifts, won’t that be good for them?” And I said, “Yes, but I’m afraid they won’t give me credit for it.” And I HAVE had clients make jokes, particularly after a conversation has gone well on all levels, where they look at me and say something like, “what did YOU do?” They do often experience that they themselves and the other party handled things surprisingly well – their focus is less on me and more on themselves and each other. But I’ve decided that it’s more important to BE helpful than to APPEAR helpful. We’ve probably all seen professionals who seemed to be focused on trying to appear like they were adding value. My clients have no fear of that with me.
Question: Does this really work?
Answer: In my experience, yes. Also, see the research on the US Postal Service REDRESS program (satisfaction rates over 90% for both sides, and closure rates close to 80% after one session). And see the recent studies by the ABA and by the State of Maryland – both show positive results associated with supportive techniques, and negative results associated with more controlling techniques.

posted by Dan Simon

8 Response Comments

  • Andrea ChasenJanuary 29, 2018 at 8:32 pm

    I, too, am trained in transformative mediation and spent more than a decade as a REDRESS mediator, so I have a great deal of experience in this method.
    Before I received my training in transformative mediation, I had taken quite a number of other mediation trainings, all with a slightly different orientation to help people in disputes learn to hear each other and work to reach agreement. After the training in transformative mediation, I continued to take additional trainings in other mediation programs. I provide this background information as a prelude to this comment about the practice of transformative mediation as espoused by Busch and others.
    So I add this thought to the Q & A provided by Mr. Simon. I use different methods as well as blends of different methods to help people reach outcomes to disputes and conflicts. Afterall, “If all you have is a hammer, everything looks like a nail.”
    To be skilled at mediation means having many tools at one’s disposal and being able to use them to assist those in dispute reach their goals. For example, having mediated countless numbers of divorce and post-divorce cases, my clients have come to me with a specific purpose: to reach an agreement regarding the dissolution of their marriage or renegotiation of a separation agreement. These clients have limited assets and are coming for the specific purpose of creating a separation agreement or modifying an existing one. They are goal driven, and if I were to use only transformative mediation practices, I might end up drawing upon their limited funds; following the parties around doesn’t get to their needs. Yes, it is sometimes the case that allowing these specific types of clients to self-direct might work to get beyond an impasse, but more often then not, it is extremely useful and helpful to have some direction that is based on the experience of the professional in the room.
    As an additional postscript to this: in my work as a REDRESS mediator there were different managers who headed up the program in the more local area; and the messages from these managers changed a great deal overtime. In the beginning, the directive to the mediators were “it doesn’t matter if the parties don’t reach agreement: stay honest to the transformative mediation process. After a couple of years, the new manager would direct the mediators to “get an agreement” as there needs to be an outcome that can be pointed to.
    So my additional thoughts are: any good professional should be able to use the right tool for the situation as called upon.

    • Dan SimonFebruary 8, 2018 at 3:31 am

      Andrea, I’m sure you have some limits to what tools you use. I’m sure you don’t do things that to you appear to undermine self-determination. So maybe we just draw our lines different places.

  • Marilyn McKnightJanuary 31, 2018 at 5:36 pm

    I believe that every professional mediator must learn transformative interventions, but there is no such thing as “transformative mediation”. The example of the USPS is interesting. Everyone who mediates for them is trained in transformative interventions/techniques, however, no one whom I have ever talked with who mediates with the USPS tell me that they cannot only use transformative techniques, because the mediation is about so much more. Professional mediators know that.

    • Dan SimonFebruary 8, 2018 at 3:35 am

      I don’t understand what you mean by there being no such thing as transformative mediation? Could you elaborate?

  • Dave WakelyFebruary 2, 2018 at 8:03 pm

    Thanks so much for posting this! I tend to work somewhere between the facilitative and evaluative camps and this answered most of my questions. What is the value proposition you offer clients? What is your elevator pitch to people who call and ask you about your process?

    • Dan SimonFebruary 8, 2018 at 3:38 am

      “I’m going to help you have the best possible conversation about your differences. By a good conversation, I mean one in which you get to say and ask what you want and you get support for sorting out possible resolutions.” What do you think of that, Dave?

  • Angela-Leah VeredFebruary 2, 2018 at 9:41 pm

    Well spoken. However I as an arbitrator, conciliator and mediator have had to deal with people with either bi polar disorder or having Asperger’s Syndrome either diagnosed or not or whose behaviour which I have recognised as being probably undiagnosed. The people who are either one or the other simply cannot make a shift and transformative mediation unfortunately simply is not the answer for them.

    • Dan SimonFebruary 8, 2018 at 3:38 am

      What is the answer for them, Angela-Leah?