What value could Transformative Mediation Practices hold for me? (Part 2)

Research

Dr Sandra Fenton

​Continuing from Part 1 >>

Purpose of transformative mediation (What)

Empowerment

Burton (1986) observes that people instinctively find their identity or self-esteem through acceptance or validation in their relationship, group or community.  He states that validation is a basic human need and there cannot be harmonious relationships without it.  Burton cautions ‘peacemakers’ (mediators) that failure to “address this human source of conflict” in mediation may prevent resolution (1996, p.30).

A transformative mediator watches closely for openings to offer parties an opportunity to gain greater clarity about their goals, resources, options, and preferences and then support them as they realize choices to help them make decisions.  This is empowerment based on transformative theory (Bush, 2002).

People in conflict typically feel unsettled, confused, fearful, disorganized, and unsure of themselves.  The purpose of every transformative intervention is to support parties as they regain their capacity to feel calmer, think more clearly, and become more confident, more organized, and more decisive in their communications with the other party. The purpose of empowerment is to create an environment where the parties feel confident to take control of their situation and articulate their needs themselves (Bush and Folger, 2005).  According to transformative theory, the mediator will recognize an empowerment shift when parties:
  1. demonstrate a clear realization of what matters to them and why;
  2. realize their goals, interests and the reasons for them;
  3. realize options and that they have control over their choices and options;
  4. can choose to stay or leave the mediation;
  5. choose to accept or reject legal advice;
  6. learn to listen, communicate, organize and analyse issues, present arguments, brainstorm and evaluate solutions;
  7. gain awareness of the resources available to achieve goals and objectives; 
  8. realize their intrinsic value during conflict; 
  9. and reflect, deliberate, and make conscious decisions for themselves (Bush, 2002; Bush & Folger, 1994, 2005).

Recognition

Recognition is not only a human right according to Burton (1996) but a human need, and failure to get it leads people to use any means available to acquire it.  To foster recognition, a transformative mediator watches for opportunities to support the parties’ own decision making as they choose how much consideration to give the perspective, view or experiences of the other person. “It [recognition] offers individuals the opportunity to strengthen and integrate their capacities for self-determination and responsiveness to others” (Bush & Folger, 1996, p. 265).

People can and do change from positions of self-absorption, and they can and do acknowledge a different perspective from their own when they voluntarily choose to become more open, attentive, sympathetic and responsive to the other party (Bush & Folger, 1994).  A transformative mediator identifies a recognition shift during mediation when either one or both parties:
  1. realize they have the capacity to reflect, consider, and acknowledge the other person;
  2. realize they are secure enough in their own position to want to listen to what the
  3. realize they have a desire to not only understand but acknowledge what the other is experiencing;
  4. allow themselves to see the other party in a more favourable light;
  5. consciously try to see the other party from a new and more sympathetic viewpoint;
  6. understand that the negative behaviour directed at them is the way the other party deals with stress, anger or hurt;
  7. openly decide to communicate and acknowledge their changed understanding of the other party; 
  8. admit to seeing things differently;
  9. apologize in some way for their participation in the conflict;
  10. decide to make some concrete changes with the other person in terms of how the dispute  is handled;
  11. and realize they are unable to accommodate the other person, but then sincerely express regret (Bush, 2002; Bush & Folger, 1994, 2005).
Recognition is the capacity to move beyond self-centeredness towards a readiness to be open to others even during a conflict event, and it cannot be forced or directed (Bush & Folger, 2005). 

Practice of transformative mediation (How)

The transformative process can be understood by three overall patterns of mediator conduct.  First, the mediator will not only focus on communication, they micro-focus on each party’s contribution from the outset of a session.  They scrutinize all forms of communication including party’s individual moves, statements, challenges, questions, and narratives, looking for opportunities to support empowerment and recognition. The mediator pays ‘close attention’ to the parties because what they say and how they say it will reveal if they are feeling disempowered and self-absorbed or empowered and willing to offer recognition.  Each move and interaction between the parties is scrutinized for opportunities to acknowledge empowerment and recognition (Bush, 2002).

This ‘micro-focus’ approach differs from the traditional facilitative approach, where the mediator adopts a ‘macro-focused’ outlook to problem solving.  Facilitative mediators try to reach global assessments about parties’ problems and view their input from a global assessment position (Charlton & Dewdney, 2004; Mayer, 2004b).  Traditional transformative mediators have a micro-focused approach (Antes & Saul, 2001).

The second pattern of transformative conduct involves clarifying the parties’ available choices at all key junctures and encouraging parties to reflect and deliberate with full awareness of their options, goals, and resources.  Party goals and choices are central to all levels of decision-making.  Transformative mediators do not define issues, put an agenda on the board, influence proposals, push for settlements or tell parties how they should speak to each other.  Instead they support the parties in whatever decisions they make, in whatever direction they choose to go, at whatever speed they want.  This approach is different from a traditional facilitative model where the mediator may be directive and intentionally or unintentionally influence the parties’ decision-making and settlement terms (Bush & Folger, 1994, 2005, Riskin, 2003).

When transformative mediators actively explore each party’s statements for opportunities of recognition they demonstrate the third pattern of mediator conduct.  This happens from the opening to the final statement of the session.  Although facilitative mediators try to move parties from the past to the present, in transformative mediation parties are not discouraged from discussing past events if they wish, as these are also seen as opportunities for recognition or to understand the other’s perspective.  This hallmark of transformative mediation, herein meaning making takes precedence over everything else, maintains that supporting parties as they discuss the past reveals important information about how they see the conflict and how they want to be seen by the other party (Bush & Folger, 1996).  Tillett and French (2006, p. 82) suggest “the past exists in and impacts on the present (and the future)”.  It includes: the past of the current conflict; the past of the disputants’ relationship; the past of each party; learned behaviours that are displayed during conflict; and the past events which caused the conflict.

Transformative mediators look for recognition opportunities as the parties bring their emotional issues into the conflict conversation (Bush & Folger, 2005).  Another hallmark of transformative practice is, “There are facts in the feelings” (Bush & Folger, 1996, p. 277).  Tillett and French (2006, p. 81) agree that “It is not facts but feelings that underpin conflict, just as it is perceptions, not reality that fuels them”.  Understanding emotion is an integral part of the mediation process (Linder, 2006).  Transformative mediators consider emotion a rich form of expression that can reveal important information about both the situation and the parties.  Rather than discourage or control strong emotion, the transformative approach embraces emotions as opportunities for party acknowledgement or recognition.  They believe that acknowledging intense emotion validates the person’s experience and brings clarity, which in turn, has the potential to support better outcomes.

Transformative communication intervention strategies

Mediation cannot be practised competently or responsibly without a constant awareness of these goals (Mayer, 2004b).  Transformative practice requires mediators to adopt a particular mind-set and make a commitment to the vision of the framework.  The fundamental principles of transformative mediation are expressed in a mediator’s ability to:
  1. be comfortable with conflict, including strong emotions and the negative pattern of interaction between parties;
  2. respect party choices, including choices about participation in mediation, even if they are choices the mediator would not personally make in a similar situation;
  3. be comfortable with a limited understanding of the parties’ conflict;
  4. respect the parties, even if their actions, appearance, language, and attitudes seem completely different from those of the mediator;
  5. be patient with the parties and the process of their interaction;
  6. focus on the moment-by-moment events in the parties’ interaction;
  7. attend to empowerment and recognition opportunities;
  8. choose interventions (and non-interventions) based upon opportunities for party empowerment and /or recognition;
  9. relinquish problem solving and control of the process (Bush, 2002, p. 75)
Practical communication interventions include reflections, summaries, questions, check-ins, and intentional silence. These responses are used over and over again throughout the meditation session.  They are used consistently resisting the urge to use other responses that are inconsistent with transformative theory.  This approach requires a commitment from the mediator to party self-determination.  “This approach to mediation requires the courage that comes from convictions” (Bush & Pope, 2004, p. 66).  The mediator must have the strength, skill and confidence to summarize chaos, confusion, high conflict, differences and the negative views of each party.  This requires the mediator to trust the parties to make the best decisions for themselves.

Dr Sandra Fenton and Dr Brenda Beatty are facilitating a three day workshop on Leading Transformative Conflict Resolution at Bastow on 3, 4 and 5 September 2014. 

References

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Antes, J., & Saul, J. (2002). What works in transformative mediator coaching: Field test findings. Pepperdine Dispute Resolution Law Journal, 3, 97-109.

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Burton, J. (1996). Conflict resolution: Its language and processes. London: Scarecrow Press. Inc.

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Bush, R., (2002). Mediation practice: The transformative framework.  Institute for the Study of Conflict Transformation Inc. New York: (Unpublished seminar workbook) New York.

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Bush, R., & Pope, S. (2002). Changing the quality of conflict interaction: The principles and practice of transformative mediation.  Pepperdine Resolution Law Journal, 3, 67-96.

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Mayer, B. (2004a).  Facilitative mediation.  In J. Folberg, A. Milne & P. Salem (Ed), Divorce and family mediation: Models, techniques, and applications. New York: The Guilford Press.

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