Dan Simon Twin Cities Mediation

If you believe Joe Folger, co-author of The Promise of Mediation: The Transformative Approach to Conflict, (and whose approach I use and provide training in), Minnesota's mediators may be doing more harm than good. On MPR's Midmorning with Kerri Miller recently, Folger claimed that prevalent mediation methods hurt the parties and endanger the entire mediation field. He explained that clients who experience the most commonly used mediation methods find the process extremely frustrating. And word of their frustration spreads, deterring others from using mediation at all.

Folger's method grew from research and theory in the field of communication. His work as a professor at the University of Michigan and now at Temple University has focused on detailed analysis of conflict conversation. Along with co-author, Baruch Bush (Professor of Law at Hofstra University) Folger articulated the so-called Transformative Model of Mediation in their first book in 1994. The U.S. Postal Service adopted their method for EEO complaints, leading to the greatest body of data about mediation ever assembled. Folger refers frequently to the conclusions reached by a variety of researchers who have examined that data. He says that out of over 50,000 cases mediated 81% were resolved without further procedures; and that over 90% of both employees and supervisors report being "satisfied" or "very satisfied" with the process, with no statistical difference between employees and supervisors in terms of their level of satisfaction.

Inadequacies of Current Practices

As Folger describes it, mainstream mediation feels pretty much the same for parties as the rest of the litigation ordeal. The mediator tries to persuade them to compromise; the parties naturally try to get the mediator to lean harder on the other side; the other side does the same thing; and nothing happens to change the basic adversarial dynamic. When this type of mediation is "successful," both sides feel defeated; according to Folger, even when such mediations lead to settlement, parties remain angry. And if no settlement happens, later negotiations become even more difficult than they were before the mediation.

The Goal of Transformation

Folger explained that the word "transformative" refers to the transformation in the parties' conflict interaction. In other words, parties to a lawsuit tend to behave destructively, demonizing each other, and lashing out defensively. Mediation has the potential to worsen that interaction or improve it. Folger's brand of mediation, he says, allows for parties to improve how they are handling the dispute. In the transformative model, the mediator lets go of settlement as the goal.

The theory points to the core experience of conflict as including a sense alienation from oneself, as well as from the other side. In other words, people in conflict feel out-of-touch with their own needs and distrustful of the other side's agenda. People report that these aspects of conflict distress them the most. They describe themselves as feeling "at their wits' end" or "out-of-control;" and they describe the other side as being "crazy" or "selfish." And because people in conflict are unclear about both their own needs and the other side's perspective, they behave in ways that harm both themselves and the other side. So the transformative mediator's goal is to help the parties reconnect with themselves and with the other side.

The Model's Methods

Because pushing settlement causes resistance in the parties and perpetuates their feeling of being under attack, the transformative mediator instead adopts a purely supportive role. That is, the transformative mediator does not control the process, but allows the parties to conduct the conversation as they want to. The mediator provides support for the conversation by reflecting each party's statements and by summarizing the gist of the disagreements. These interventions give the parties opportunities to reflect on what has been said, which leads to correction of misperceptions and increased self-awareness about parties' own contribution to the destructive dynamic. The parties tend to shift from a sense of weakness to a sense of strength and from defensiveness to openness. The conversations then tend to move spontaneously toward collaborative problem-solving. Settlements usually happen in transformative mediation, but not because the mediator pushed it. The settlements arise out of genuine changes of perspective that the parties have experienced.

But All They Want is a Settlement

Folger admits that clients often say things like, "I just want it to be over." But he points out that they also say other things, such as "it's a matter of principle," or "I refuse to be treated that way." And they reveal that they are highly emotionally engaged with the other party with statements like "I never want to see that @#%&* again." Folger says mediation can address all of those issues, too. He points out that neither litigation nor most mediation methods address the emotional aspects of lawsuits, such as the insult, the sense of betrayal, or the feeling of being disrespected. He says that, when those issues arise, the mediator can help facilitate resolution of them. Once those core issues are resolved, settlements follow quickly.

But Doesn't it Take Too Long?

Folger says that transformative mediations take less time than settlement-conference style mediations. He points out that the postal service mediations were concluded in an average of under 3 hours; he also cites anecdotal reports from transformative family mediators, who report that divorces go more quickly with this model. The transformative mediator spends less time establishing credibility (since the mediator doesn't need to prepare the parties to be persuaded by the mediator); the mediator also spends less time directing the conversation, which allows the parties to focus directly on the heart of the issue, as they see it.

So Why Hasn't it Caught On?

Folger says that his approach has, in fact, caught on in some circles. But the attorneys and retired judges who practice mediation have had trouble getting away from the settlement focus, which leads to the continuing adversarial dynamic. Folger points out that the transformative approach is counter-intuitive for those accustomed to the legal framework. Most mediators have trouble letting go of that worldview, and thus their clients are doomed to remain locked in that type of battle. Mediation's potential, Folger says, is to offer a venue where people can escape the legal framework and deal with the true nature of their conflict. Folger hopes that the widespread dissatisfaction with both litigation and with legalistic mediation will spur increasing demand for transformative mediation.

March 1, 2005
Dan Simon, MA, J.D.