A few days ago, The New York Times published an article that mentioned transformative mediation, Baruch Bush, and Joe Folger.  While it’s great to see any mention of those three subjects in that publication, it’s a shame that the article perpetuates some misconceptions about transformative mediation.  I submitted a shortened version of the following as a letter to the editor.

To the Editor:

Congratulations on Paul Sullivan’s August 18th, 2017 article “Squabbles over the Family Summer Home”. The success of the US Postal Service REDRESS program has been otherwise under-reported. And Bush and Folger’s enormous contribution to both the theory and practice of mediation is also worthy of this sort of attention. As Sullivan suggests, transformative mediation is a powerful way to resolve all types of disputes at their core.  But due to some of its nuances, transformative mediation has been overlooked by many who could benefit from it; and it’s been incorrectly practiced by many mediators who haven’t fully embraced it.

I have practiced transformative mediation since 1998 and taught it since 2004.  Sullivan’s article and several of his sources made some of the same mistakes that have led many to underestimate the effectiveness and overestimate the cost of transformative mediation. Sullivan describes transformative mediation as an “ambitious but sometimes lengthy process”.  Given that 90% of parties on both sides of the Postal Service’s transformative mediations were satisfied with the process and that no further process was required in almost 80% of the cases, “effective’ would be a more appropriate word than “ambitious.”  And given that the postal service mediations take an average of around 2 hours (and I never schedule a mediation regardless of who the parties are or what their dispute is about, for more than 4 hours) “quick” would have been more accurate than “lengthy.”

Also, three of the mediators who Sullivan quoted must not have been transformative mediators based on what they said.  Mediator Jack Wofford was quoted as saying ““I try to use the emotional dimension to help them understand what they’re dealing with and come to some next steps,” But according to transformative theory, it is not the mediator’s place to have an agenda such as helping the parties understand a certain thing or such as coming to next steps.  Parties do achieve new understanding and decide on next steps in transformative mediation, but the reason they’re able to do those things so well, is that they are allowed to make choices in each moment of the mediation about which direction to go.  And their ability to do so is enhanced by the presence of a mediator who has no direction that he prefers for them.

Even Richard Lutinger’s statement, “I want them to leave after our sessions knowing what the problems are and knowing what happened” reveals more of an agenda than a transformative mediator should have.  While knowing what the problems are and what happened may be helpful to the parties, there may be other aspects of the situation that are more important to them.  The parties choosing what to focus on is what maximizes the likelihood and degree of transformation.

Finally, Mark Casella’s comments were especially inconsistent with the transformative approach.  Contrary to his comments, it is not appropriate for a transformative mediatior to seek to separate facts from feelings.  Feelings and facts are inherently intertwined. Feelings such as compassion and affection can lead to very satisfying choices about what to do with the summer home.  Feelings like anger can help people make choices in which they stand up for themselves appropriately.  It’s not a transformative mediator’s place to do anything but support the parties as they make their own choices about feelings, facts, or whatever aspect of the situation they want to address.

This focus on supporting parties’ choices in each moment of the process is what makes transformative mediation unique and far more effective and empowering than other approaches.  And it’s what makes it possible for, as Sullivan suggests, families to address practical questions about what to do with the summer home while also improving their interactions with each other.  But it’s important to note that transformative mediation achieves these sorts of results very consistently and surprisingly efficiently.

posted by Dan Simon

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