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Transformative Mediation – Theory, Process and Principles

Transformative Mediation – Theory, Process and Principles

Many scholars and practitioners have expressed concerns that the apparent growing trend towards evaluative mediation is taking the field in a direction away from the core principles of mediation. Dan Simon believes transformative mediation can keep us honest and help us practice consistent with the core values of mediation. If you’re a reflective practitioner, this is a must watch interview – so that’s everyone, yes including you!

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Transcript

Full Transcript

Aled Davies: Hi everyone. My name is Aled Davies, founder of MediatorAcademy.com, home of the hungry, home of the passionate mediator and a place where new and aspiring mediators come and listen to experienced mediators from around the world tell their story about what’s helped them become effective and successful at what they do. What you see and hear on Mediator Academy isn’t something you typically find on any mediation training course. Much of your growth and development will come from experience and this is what my guests bring. So at the very least, you’ll leave here with some clear, actionable steps that you can take to move one step closer to achieving what you want to achieve in this field and improving your effectiveness. I want you to be inspired, as inspired as I always am. So you’ll take at least one actionable step, make one change a week and build your own success story and maybe then you’ll come back onto Mediator Academy and tell your story to my audience.

All right. How do you manage the very start of a mediation when you invite the parties to present their opening statements? Now I’ve done that a couple of times and I’ve just said, ‘Okay, who’d like to get us started?’ And what happens when you experience, as I’ve done, that uncomfortable silence as the tumbleweed sort of rolls through the mediation as each party holds out waiting for the other to speak. Maybe you’ve never encountered that you’ve always sorted things out, agreed who’s going to get things rolling.

Well this is just one feature of the transformative approach to mediation. Now there’s a lot more to it, obviously, than that and I am sure today my guest will help you and me understand how to apply the principles of transformative mediation to the disputes that you and I mediate.

He’s the founder of Twin Cities Mediation. His company provides a range of mediation services and training in Minnesota. Now whilst he’s licensed to practice law in Minnesota, he prefers to practice mediation exclusively. He’s got an undergraduate degree as well as an M.A. in counselling psychology and has worked as business litigation attorney and as a family business consultant. Throughout his career, he’s been committed to finding better ways to intervene in cases of highly emotional conflict. He’s a member of the board of directors for the Institute for the Study of Conflict Transformation and has a list, as long as my arm, of licenses, qualifications, publications, speaking engagements, training too many to mention, but I will include everything in his bio below. So let’s get cracking and welcome Dan Simon to Mediator Academy. Dan, welcome.

Dan Simon: Thank you, Aled. I’m glad to be here. I really appreciate it.

Aled: Brilliant. Brilliant to have you on. So you are my second U.S. guest and I’m delighted that you agreed to do this because I know a large chunk of my audience are U.S. mediators. So that’s wonderful.

Dan: Great.

Aled: Now on your website, which is a wonderful website, by the way, lots of information and I’ll include that in a moment. You say, you use the term ‘transformative’ to distinguish what you do to the more manipulative approaches to mediation.

Dan: Wow. Start with controversy right away, Aled.

Aled: Indeed. So tell me a bit more about what you mean by that, please.

Dan: Well first of all I want to acknowledge that it probably comes off as not a particularly kind way to refer to my fellow mediators. At the same time, I’m afraid it’s an honest statement of what, particularly here in the U.S.A. is called ‘mediation’, I do see as a very manipulative process. I see it as very outcome-focused. And just by virtue of being outcome-focused, to me that means that the process itself, is being managed in a way that is not focused on the truth in the moment, but on getting people to a certain outcome. It’s an attempt to get people to a certain place. Therefore it’s not completely transparent and the things that the mediator says are designed to get people somewhere. So it’s not fully within the parties’ control. Maybe I should be more specific about that.

Aled: Yeah. So I mean when you say it’s outcome-focused, I’ve done a range of different mediation trainings from sort of community, workplace, commercial and the espoused model is a facilitative model…
Dan: Yeah.

Aled: …in that the parties are empowered to do what they need to do whilst the mediator just kind of manages, keeps the process moving along.

Dan: Yeah. Well ‘espoused’, I’m glad you used that word because I do feel that some of what is espoused is not consistent with what is practiced. And yes, when I was originally trained as a facilitative mediator, we were encouraged to say things to the clients like, ‘Trust the process’. The thing about ‘the process’ was that it had been designed to maximise the chances that people would come to an agreement. So the process was, ‘Buy into this agenda of mine, comply with what I’m trying to do here,’ and then my justification internally was, ‘If you comply with what I ask you to do, then you’ll get to a settlement which I assume is what we’re all here to do’. Which doesn’t sound that evil really, but it is what I’m calling ‘manipulative’.

Aled: Okay. And you said it’s manipulative because it’s not transparent.

Dan: That’s right. That’s right. So for example, a simple act of reframing. So let’s say that I, for example, I’m doing a family case and I hear Dad saying, ‘I want to see those kids on Thursday and Friday and Monday and Tuesday’, and I hear Mom saying, ‘I want to see the kids on Monday and Tuesday and Wednesday and Thursday’. And then a reframe of that might be, ‘I see, so you both would like to see the children as much as possible’. No, that’s not what they said exactly. Dad said Monday, Tuesday, Thursday, Friday. Mom said Monday, Tuesday, Wednesday, Thursday or whatever. I am kind of using my perceived authority to change what they are saying. The reason I’m doing that is because I think that that will make the problem more solvable and will lead them to a settlement. I’m not doing that because I’m being genuine in reflecting what they have said. I’m trying to get them somewhere other than where they were.

Aled: Okay.

Dan: Yeah. Go ahead.

Aled: So help me understand then. The role of the mediator in a transformative approach. What’s the role of the mediator?

Dan: Beautiful question. Beautiful question. And I think that is the question that all of us mediators could stand to clarify the answer to. So the role of the mediator in the transformative model is to ‘support’ the conversation. And by ‘support the conversation’ we mean: allow for; maximise the opportunities for parties to say whatever they want to say; ask whatever they want to ask; make whatever decisions they want to make about everything, including the process itself. So that’s a lot for a mediator to do actually. It’s a lot other than trying to lead them or guide them or nudge them anywhere. It is support, follow, be there for them to turn to when it’s getting too frustrating. You know, they can turn to me and say, ‘Dan, this isn’t getting anywhere’ and I’m right there with them paying attention and say, ‘Ah, okay. So this isn’t getting anywhere. I gather you’d like to do something different’ or whatever. Support, human support.

Aled: So embedded in there are, let me try to turn this into a question. Is there embedded in the model then, the assumption that as long as the mediator supports, provides that sort of scaffolding. Do you understand ‘scaffolding’?

Dan: Sure. Yes. Great word for it.

Aled: Then the parties can construct, I’m getting into metaphor now, but can construct their own process, can construct their own conversation, outcome? I mean does outcome even come into it?

Dan: It often does for the parties. They often do have a preference for where the conversation goes. So that’s part of why the mediator can let go of any attachment to any particular outcome. As we all know as mediators, it is the parties that are going to have to deal with the outcome and so sure, they often care about the outcome a lot. Helping them as they find their way to that outcome, is part of what we do, but we don’t take responsibility for that outcome more than they do. We don’t say, ‘Ooh, wait a minute, what you’re saying right now is not consistent with the outcome that you said that you wanted?’ We don’t do that to them. That sort of insight is the sort of thing that could be the most powerful thing for them to experience themselves. You follow me? So I’m afraid that some mediators, when they hear one party saying something that might be offensive to the other party, the mediator might say to the party who said the offensive thing, ‘Hey. Now wait a minute. I think it might be more helpful if you would say something nicer because you told me earlier that you’d like to come to an agreement and I’m afraid that offensive thing is just going to make the other person angry.’ Those inconsistencies and those confused varieties of mixed feelings that the parties have, absolutely those getting sorted out is one of the great values of mediation. But those things only really get sorted out, we would say, if the parties are able to do it themselves as opposed to us favouring a certain direction. You follow me?

Aled: Okay. So an aspect of this then, we need to trust that the parties can sort it out.

Dan: We are committing to that self-determination ideal in a big way. That’s right.

Aled: That’s taking self-determination to a whole new level.

Dan: I think so. I think so. To me that is really the appeal of mediation in general. So when Bush & Joseph Folger wrote the book called ‘The Promise of Mediation’, my interpretation of one of their points is that ‘the promise’, the potential of mediation and the reason it differs from any other ADR approach is that the parties have control and they are self-determining. I think it’s really important to have a strong definition of self-determination, otherwise there’s that slippery slope to, ‘Well, it’s self-determination as long as I didn’t hold a gun to your head to sign a deal. Then it was your choice. But anything short of that is me being “helpful” as a mediator’. So that’s where, certainly the stories I hear form mediation as it’s done in litigation in the U.S.A., absolutely uses every trick in the book to try to get a deal done.

They say, ‘Hey, well it’s self-determination because I’m not a judge. I couldn’t order you to do it’. It doesn’t feel like self-determination to the parties. It feels like they got beaten down. And you know, now I’m distinguishing it from the more extreme but more common, frankly, litigation approaches to mediation. You know, those of us who are thinking a lot about mediation and studying it and teaching it, we tend not to engage in those more extreme, almost coercive measures. But as for why we don’t? I think the reason we don’t is because we believe in self-determination. So let’s make sure we’re being really true to that.

Aled: Okay. All right. Sorry go on.

Dan: Well, you started off with that question in the opening moment in a mediation where it may indeed feel uncomfortable for the mediator to say something like, ‘So where would you all like to start?’ And I’d say that I was uncomfortable for me when I first tried to actually embrace the transformative model. At this stage, I really don’t have any discomfort about that because it’s so clear to me that it’s their choice who starts and how they start. And it’s so clear to me that they have so much more knowledge about what matters to them in that moment than I do. So I realize now that the reason I was uncomfortable before was because I wanted to convince them that I was in control of the process, which was never true. I never was in control of the process. I would do things to create the illusion that I was in control, but I wasn’t and I’m not and I shouldn’t be. So now I’m very comfortable with the idea that, ‘This is your process. I am here to support you folks. So what do you want to do?’

Aled: Okay.

Dan: ‘It’s up to you. Let’s start off on the right foot. Let’s make it clear that it’s up to you’, and to me there’s no more empowering message than that. ‘This is up to you, where would you like to start?’

Aled: ‘Well, Dan, you’re the expert. We got you in. What do you recommend we do?’

Dan: Well, oh I see, I’m sorry. I missed it there. You’re being a party.

Aled: Because you know what? I could see that happening to me.

Dan: Absolutely. Absolutely. ‘Well, as I said briefly in my introduction, Aled, I feel that this is an opportunity for you all to have a conversation about whatever you feel would be helpful to talk about at this point so it really is your choice how you start.’ And then you say to me again, ‘Well yeah, Dan, you’re the expert. I don’t know where to start. This is overwhelming. We came here because you could tell us what to do’.
‘Well actually I should make that clear that I actually don’t know what you should do. I see my role as just being here for you, as you have the conversation, and I’ll reflect what I hear you saying and I’ll summarise what I hear and see as areas of agreement and disagreement. But you know your situation much better than I do. So I’ll leave that up to you. Where do you want to start?’ And most often my experience has been that there really isn’t a long moment of discomfort. Often a very meaningful thing happens where one party says to the other, ‘You know, why don’t you go first, if that’s okay.’, so already there’s some transformation happening instantly. There’s the realisation that, ‘Boy, we aren’t absolutely complete enemies. This guy just offered me the chance to go first.’ And then maybe I deferred to him and said, ‘No. No. That’s okay. You go’. Boom, we’re already collaborating. Just because I stayed out of the way.

Aled: Yea. I mean it’s interesting. Whenever I’ve done it, a couple of times now and nobody wants to go first.

Dan: Really? Really? Well, here’s a subtle thing that may not explain it but I noticed that you when you asked the question at the beginning of this talk you said, ‘So who would like to get us started?’ I ask a different question. To me, that’s not a question. It’s not a question of who, my assumption is that we’re all here together and it’s ‘How would you all like to start?’, a little bit different.

Aled: Very, ah, stop it, Dan, stop it.

Dan: I’ve been thinking about this a long time. Sorry.

Aled: No, that’s great. So it’s, ‘How would you all like to start?’

Dan: Which to me, you know, it’s tiny, but it is a manifestation of what I see as a full paradigm shift from any sort of quasi-legalistic process. You know every other legal process, in fact, you used the word ‘opening statements’ and so that’s, of course to me, that’s a vestige of a legalistic process. And you know, part of it is just that philosophical commitment to it being a conversation as opposed a proceeding that I assume is adversarial. I assume there’s some differences, but I also assume these are two human beings who have a lot in common and so ‘conversation’ is the word that I, is really what I see happening.

Aled: I’m with you. I’m with you. Here’s the challenge I think we’ve got as a field. Particularly in the U.K., and it’s probably more commercial mediation, sort of litigation mediation you might sort of refer it, where I think for the most part people espouse a facilitative model and that’s welcomed. I get the impression that more and more people are wanting more, not just facilitative, but even moving over to an evaluative mediator where someone who’s got some credability or authority as a judge or a top litigator, can give their perspective.

Dan: Absolutely.

Aled: And it’s not as if we’re moving towards a transformative, back to, closer to the core values of self-determination, but I get the impression we’re drifting away from that.

Dan: I’m afraid so. Here as well. A phenomena here in the U.S.A., you know I’m particularly aware in the area of family, divorce, domestic situations that there are a bunch of roles that aren’t even called ‘mediator’ anymore. They’re called ‘early neutral evaluation’. There’s something that’s really, as I see it, kind of dysfunctional called a ‘parenting time expeditor’ or a ‘parenting consultant’. And those are people that have authority delegated to them by the judge to make decisions about parenting for people. The theory is that the parenting time expeditor or parenting consultant is supposed to mediate first and if that doesn’t lead to a conclusion, then they get to make a decision.

As you can imagine, the fact that they have the authority to make that decision, colours the process entirely and interferes in a big way with the parents having any sort of shift in how they’re relating to each other. It locks them into an adversarial relationship. So I hear you.

To me the legal system is so clear and has such a long tradition of the idea being that people plead their case and an authority figure makes a decision. The illusion of finality that that creates, the idea that once a decision is made and a document is signed, then it’s over. That’s another kind of bias of the legal system that ‘the document is what matters’ and so as long the legal culture is driving the market, there is that pull toward these more adversarial, more adjudicative, more evaluative approaches.

It’s another rationale for me being such a purist about what I do. It’s my way of distinguishing what I do from any other form of so called ADR. I’m committed to this self-determination thing from the first moment and even before that. The question of whether you want to participate, I’m not going to even try to sell you on this process. I’m available. I would love to help. I don’t know if it’s going to be what’s best for you. There are a whole lot of processes out there, but I’d love to help and my role will be to support your conversation.

Aled: I… sorry to interrupt you, Dan.

Dan: No. Go for it.

Aled: So, okay. So let’s think about this then. So from the moment that a party approaches you to want your help as a mediator, what sort of interaction, what do you say? What don’t you say? I guess the dilemma is, how much information do you give them so that they feel kind of reassured that that’s going to work for them?

Dan: It’s a great question and I feel like that is an area that I’m still developing. Basically, I don’t want to call it a sales pitch. Certainly I do have, deep down, the preference that I have as much work as possible. And so there is a bit of a conflict of interest between my desire to get some work and my desire to support other self-determination throughout even that first moment when I talk to them. So I do my best to answer questions they have about the process. I absolutely don’t go anywhere near promising any sort of outcome. I may go so far as to say, ‘Often people find that they’re able figure out an agreement. Often they feel that they’ve gotten clearer about what they want and they’ve gotten a better understanding of each other. I don’t know if that’s going to happen in your case. That’s what happens a lot. So I’d love to help.’ And yeah, that’s about it.

Aled: Wow, Okay.

Dan: And other than that I listen to them and hear them out about their whole situation that often if they’re really riled up about it, they can’t help but want to tell me the story. And I’ll set limits just for my own purposes of not having that much time to give away for free, but I’ll listen to them a bit and say, ‘Okay. So I’m hearing that you think the other party is crazy and you’re not sure if there’s any purpose in talking to them. On the other hand, the lawyer wants to charge you $2,000 to even start the case so you’re contemplating whether talking to them would be worthwhile. I see. Well, I would love to help with that if you think it would be worth a try.’

Aled: Very interesting. Very interesting. Do you find then that you tend to work with a particular type of dispute or a particular type of client?

Dan: The easiest work for me to find has been divorce and parenting disputes. Although I’d say, as of now, half of my work is workplace disputes. You may have heard about the U.S. Postal Service’s redress programme, which is committed to the transformative model. So I do some of that work and I have a few other organisations that call me in for disputes that are pre-litigation. They’re just workplace conflicts. But I also get a slow trickle of litigated cases in all different areas. My real preference would be to be breaking into that world more thoroughly. The cases I’ve done where there have been lawyers on both sides in some, often business dispute, have gone incredibly well and I’ve been very lucky, I think, that they’ve gone so well because obviously it really depends on the parties. But it turns out a three-hour conversation, even with lawyers present, even with extremely strong feelings on both sides, very often leads to all kinds of wonderful things including, by the way, a settlement. But the lawyers often are comfortable with it.

I just had one recently where within three hours there was an agreement at the end as well as weeping on both sides and an actual hug between the plaintiff and the defendant. Your wildest dreams of how beautifully it can go came true. And I asked one of the lawyers who was there afterward how he felt about that process and he said, ‘Well, you know, I prefer to have the process where we’re kept separate from the other side and where it’s a little bit more under control.’ So he didn’t even appreciate that what happened in that session certainly would not have happened in a shuttle diplomacy approach. And what’s more, a shuttle diplomacy approach would have been scheduled for a full day and that’s where there would have been a settlement that both sides were bitter about. And so he, even though it was right before his eyes didn’t appreciate how powerful that was. So it’s a tough sell to the legal community.

Aled: It is a tough sell and that’s my concern because there’s an expectation. You know lawyers, commercial mediations certainly in the U.K. and I’m sure in other parts of the world, in Europe, the main sort of source of referrals are the lawyers representing the parties. They make a decision. They appoint the mediators. And they have an expectation of what’s going to happen and what’s not going to happen. And I think part of their anxiety is about things getting out of control, how they will look in the eyes of their clients.

Dan: Absolutely.

Aled: And particularly it’s a tough sell if you ain’t selling anything.

Dan: Well, that’s right. You’re right. Those are all concerns in the minds of the lawyers and in fact in that case that I mentioned, there was a moment where the two lawyers were bickering with each other and one of the parties said, ‘Boy, Dan, you’re going to have to mediate between them. Ha ha ha.’ Which to me is not even that funny a joke because of course I have to mediate between them. Why wouldn’t I? But it was clearly kind of a moment where both lawyers looked up and were kind of embarrassed that they were engaging in something that probably didn’t appear very productive to their clients. And yea, that’s the risk they face in this process. They might be revealed for being human. They might have to confront the other lawyer who, the lawyers might start engaging in legal arguments and that could be embarrassing if you don’t win that little verbal joust. It really makes them have to step up. So yeah, it’s more comfortable to be in a separate room where you don’t have to confront the other side. That’s, I’m afraid, an indictment that I made in a blog post recently that, in a sense, a lot of mediators are in collusion with lawyers. They design a process so that it is comfortable for the lawyers and that indeed is a way to get busier. If the lawyers like your process, you will get more work. If the lawyers like your process, there’s a good chance you aren’t paying attention to what the parties need.

Aled: I bet that went down well.

Dan: People were quite offended by that. ‘I’m sorry folks. It’s how I see it. No disrespect to you all and you’re all… ‘

Aled: You know, I can see an unintentional collusion that takes place in mediation.

Dan: Unintentional. The intention of it arises pretty quickly when I engage in these conversations with mediators and they raise the concern about, ‘How are you going to stay busy and make enough of a living if you do it that way?’ Right. It is a challenge. So let’s just acknowledge that part of why you’re making your process choices is because you make more money that way. Let’s just be explicit about that.

Aled: Yea. And you know, again, thinking about publicising one’s or advertising one’s settlement rate. Again, implicit in that is, ‘You stand a better chance of reaching an outcome, a settlement, with me as a mediator.’

Dan: Yea. Well the good news, of course, about the transformative model is that to the extent there is really reliable data on mediation, you know the Postal Service programme is the biggest source of data about mediation ever and it showed close to 80% in that transformative programme of cases going away. Not necessarily settlements at the table, but either the complainant withdrawing their complaint or an agreement being reached soon after the mediation. 80% went away despite the mediator’s commitment to pure process as opposed to outcome. When I hear about settlement rates over 80%, frankly I get suspicious and I’m afraid there are tricks being used like if a case doesn’t settle, the mediator then says, ‘Okay. Well that doesn’t count. That case was not appropriate for mediation.’ I get 90% of the cases settled that were appropriate for mediation.

Aled: So at the heart of the transformative process is self-determination.

Dan: That’s right.

Aled: So I’m thinking, I’ve got two mediations next week and both workplace mediation with big organisation and they say to me, ‘How long’s it going to take?’ Now I say, ‘At the most, a day. Sometimes they finish sooner, who knows?’ What do you say if somebody asks you?

Dan: That’s a very good questions because to be fully true to the principles of the transformative model I would say, ‘Well that would be up to you. It’s your choice.’ But I do accommodate my own needs in that. So I tell them that ‘For my own needs I’d like to schedule a certain number of hours and then we get to use as much of that time as you want to and I’ll be available to schedule more time later if you’d like.’ The Postal Service programme instructed employees that it may take up to five hours and that happened to be sufficient in every case that I’ve done for Postal Service. In fact, one and a half or two hours was probably the average.

Aled: Wow. Okay. All right. So that’s how you would, I mean you, hmm. I can see how I might say, ‘Look, other …, typically…’ Am I allowed to say something like, ‘Typically these things…’?

Dan: Well, you’re right to be questioning yourself and there is no precise answer to what we’re allowed to say. You know, that’s something that I do allow myself to say.

Aled: I’m just thinking of the HR director saying, ‘Aled, I need to know how much budget. These people are really busy people. I need to be able to manage their expectations. How long’s this going to take?’

Dan: Yea. Well so I’d want to take into consideration that HR person’s vision of how much time should be allowed. And if the HR person says, ‘Boy, really? Boy, more than three hours, that’s going to be tough’, I’d say, ‘Well, I’ll be happy to see what we can do in three hours and sure that might be sufficient’.

Aled: Okay. All right. Okay I see. So we’ve started the mediation and what happens then? Because I’m guessing you don’t set any ground rules, is that right?

Dan: Not of my own volition. If a party brings up the idea that they ought to have certain rules then I am right there supporting them in exploring that. It rarely happens that they suggest it.

Aled: Okay. So in terms of how people behave, in terms of how people listen and so on, there’s none of that it just, ‘Let’s just get into the conversation’?

Dan: That’s right. Occasionally it will arise, in a particularly heated one, where somebody doesn’t want to be interrupted and they’ll say, ‘Hey, I let you talk, now let me talk’ and then they might even say, ‘Dan, can you help out here?’ And then I do I do help out. I say, ‘Okay. So you don’t want to be interrupted. They had a chance to say what they said for 20 minutes and now you’d like to have a chance to speak as well’. And that’s all that’s needed and off they go. And again, that opportunity to negotiate that between themselves is an important part of the process.

Aled: Okay. What about when you have an imbalance of power? I mean everything I’m asking you now I can see the dilemmas I’m raising in my own sort of practice.

Dan: Well yeah and do you want to answer that question first? You know, what do you do about power imbalances?

Aled: Well, I guess I had one thing in mind. If you’ve got one party that does all the talking and the other party just does all the listening how do you intervene if you’ve got some concerns that one party’s dominating, you know, one party’s deferent to the other’s authority, position? I mean, how would you handle that?

Dan: Well I first acknowledge that I can’t promise a ‘fair’ process in the sense that I can somehow equalise the power. If that person does have more power outside of the mediation session, I have no influence outside the mediation session and I have no way of preventing that from being a factor in the mediation session. That may be part of reality.

Second, I am doing everything I can throughout the process to let everybody present know that’s as far as I’m concerned, they get to participate in any way they want to and I remind people of that. And so if one person has been talking for a long period of time, the other person hasn’t said anything, I might gently offer what we call a ‘check in’ to the quieter party and I’d say, ‘Quieter party, you haven’t said anything in a while. Just checking, did you want to say something? Or are you okay?’ Not that my agenda is to get them equal time, but my agenda is to make sure that everybody present knows they are welcome, as far as I’m concerned, to participate in any way they want. Or just a more general check in, ‘Just want to check in with everybody, how’s this going? I know that Joe here has been talking for most of the time. Which, no problem, but is that okay with everybody? Or what would you like to do?’ You know, always keeping the responsibility with them to make the choices.

This is one where I think, again, the big potential of mediation is if there is a power imbalance for that weaker party to say, ‘Yea. You know what? You’ve kind of been pulling your authority over me for years now and here we are in this mediation session and again you’re doing all the talking. Well, I’m not going to take it anymore. You know what? You’ve got to listen to me for once.’ And then that’s awesome. That would be an awesome moment in a mediation. If I were prevented, if I were to say, ‘Okay, I want you to have equal time. Steve, go ahead’, I’m interfering with that cool stuff that could happen.

Aled: Okay. That sense of empowerment that people take charge of themselves.

Dan: Yeah. And that they also have compassion for each other. That’s the other thing that we can interfere with as mediators if we’re too controlling of the process. That people actually often defer to each other. It actually doesn’t feel to them as adversarial a process as we set it up to be. They actually are aware that they have some ability to cooperate in how they engage in the conversation. We set the bar very low on their capacity by believing that we have to control the conversation.

Aled: Yeah. I guess philosophically I’m getting it. Practically I’m struggling. Here’s where I’m struggling. I’m struggling with, I can’t shake the framework in my mind of sort of, get the conversation started, identify the key issues, explore, and then kind of start negotiating, shaping an agreement and shaking hands. What happens in a transformative process and how do you… ?

Dan: Well, of course, the urge to know that you’re doing something, that you’re adding value, and making progress. I have those same urges so I just have indoctrinated myself to see progress as any time that I see people making their own choices about anything including if it’s the choice to say, ‘You know what? I don’t want to talk about that. I want to talk about how you… about some event from the past that’s really stuck in my craw.’ To me, that’s good news. This person decided they wanted to talk about that. I don’t see that as a problem because it’s not leading us toward a settlement. I have little things that give me a sense of progress, but I’ve had to really adopt the philosophy and see progress differently.

Then I have these tools that I get to use that I do feel like I’m really adding value. To me a really powerful tool that I often get to use if parties want it is just a summary of what they talked about so far. ‘So you two have talked about a variety of things. One thing you’ve talked about is the outcome that you’d like for today. Joe, you said that you’re really hoping that this can be over and that you can have an agreement when you’re done. John, you said that more important even then getting an agreement is a sense of fairness about this whole thing. You also talked about what happened two weeks ago and, Joe, you said it was all a misunderstanding. John, you think it was an intentional insult that Joe did. You know, Boom, everything we covered, now is there something within there that you’d like to focus on or is there something else you’d like to talk about?’ I’m making a great contribution with that I feel like. I am adding clarity to the conversation, reminding them of the choices they have to make about what to talk about,and supporting them in the experience of making choices for themselves.

Aled: Yeah. You know, I can see that. Do parties that come to transformative mediation have an expectation that they get somewhere?

Dan: Yeah. I think it’s very common that they have a hope, often of coming to a settlement, frankly. I mean, I think that’s true that they bring that in there and that’s another reason that we don’t have to be attached to it as I said earlier. I get into a lot of debates on LinkedIn. I don’t know how popular LinkedIn is in the U.K., that website. But I’ll post one of my blog entries and that’ll lead to some debate. One thing that I often hear from other mediators is, ‘Hey. The parties come to you because they want a settlement and so all this stuff you’re talking about, about transformation, that’s your agenda.’ ‘Well, no let’s be clear. My agenda is not transformation. It’s a wonderful side effect of what I do, but it’s not my agenda. My agenda is to support the conversation and support them in doing what they want to do. To the extent that they want to negotiate a settlement, I’m right there with them as they do that. To the extent that they have mixed feelings and want to talk about other things, I also support that.’

Aled: So when people talk about transformation, what is it that they think happens?

Dan: Well, it does happen. And it is the experience that people have of becoming more aware of their power and the choices that they have. It’s also becoming more aware of the other person’s perspective. That’s it, empowerment and recognition. And it happens. It happens kind of naturally and sometimes only incrementally and though those words sound kind of spacey and as if they are based on some really idealistic view of human nature, they are a little bit, but also they are very practical when it comes to, for example, negotiating a money settlement. The barrier to businesses agreeing an a dollar amount in a settlement, I believe, is a sense of distrust and a kind of fear of, ‘What will happen if I make any sort of gesture toward the other side that will be used against me.’ So the way for a negotiation to happen more effectively is for there to be a little change in how we’re interacting. For me to gain the courage to say, ‘You know what? I’m not promising anything, but if I were to offer you $50,000, will you at least – and I’m not offering you $50,000 I’m just speaking hypothetically, if I were to offer you that will I discover that you’re open to a lower number? Or are you just going to stick…’ You know, more creative ways they can do the negotiation once they’ve loosened up a little bit toward each other. So it’s effective for that bottom line oriented case as well.

Aled: Ah, fascinating. Yeah, it is.

Dan: I’m clearly sold on this.

Aled: So how did you become sold on this then?

Dan: I think part of it is just that I, for some reason, probably based on childhood issues, have a love of self-determination and kind of a resistance to authority and kind of a sense that authority is often misused. And then I heard Baruch Bush speak and then I read their book and I thought, ‘Okay. These guys have thought very deeply about what conflict is. And based on what conflict is, at its core, what would be the most helpful way to intervene so people get to a better place with it?’ So I think they did a lot of the hard intellectual work in defining what the role of the mediator is and it just resonated with me. And then it took a lot of practice because it’s very hard to let go of wanting to be in control, wanting to convince the parties that I was adding value all the time and so I’d say things for the purpose of convincing them that I was adding value. Those were not things that added value, they were just for the purpose of convincing them that I was adding value, but they didn’t. So letting go of a lot of that and really focusing, I think, on what is helpful.

Aled: Whoa. This is a very tough interview. It’s tough thinking, you know I think the core values are really important to me, self-determination. I’m already starting to think, ‘Oh my goodness, I’m in so many ways, unintentionally colluding, contributing to things getting worse.’

Dan: Well I appreciate you being open to that sort of self-reflection because it’s hard to do and don’t worry, I have not perfected this art form. I promise that conflict is difficult for people even when they have the most amazing, supportive mediator present. So you are still present for people in their conflict. You, I assume, have a largely non-judgmental attitude toward them. You are supportive of them and you try to help with a few nudges along the way and you probably aren’t doing too much harm.

Aled: Thank you. Well, you know, by all accounts I think I – –

Dan: People find it helpful, what you’re doing.

Aled: People find it helpful. I’ve certainly changed the way I practice. I talk about things like transparency, accountability, informed choice, and curiosity when I mediate. I don’t tend to start a mediation in the way I’ve been taught. I’ve created my own narrative, if you like. I talk about why I think those values are important. I talk about how I will try and manage the conversation in a way that people get their needs met, that encourages accountability, promotes curiosity and compassion. And transparency, so you know, I like to think I’m transparent in that, if I make an intervention I tend to be transparent about what I’m doing and why I’m doing it. So if I think, for example, one party’s talking a lot, and the other one’s not talking or isn’t able to get a word in ever, I might intervene, I might say, ‘Hold on a second, Brian. I’m just pausing here because I wanted to check in with Sue to see whether she wanted to react to something you said earlier. I got the impression that she was trying to say something and wasn’t able to. And I’m checking in because I want to make sure that…’ And so that would be an intervention that I would make. I’m transparent about my reasoning for intervening.

Dan: Yeah. That sounded pretty consistent with what we would do as a check in in the transformative model as well. I think you’d love the tools because those of us who have been sold on this philosophy have been really trying to pay attention to really what is consistent with the philosophy and also helpful to the parties. So I feel like we have figured out some of that stuff.

Aled: Okay. All right. So I’m quite keen now, I think I’ve got, I mean I understand the self-determination and why that’s very important. I’ve now got the empowerment and recognition, so parties taking charge of themselves, increasing that awareness, but also acknowledging and recognizing that the other person also has feelings, needs, and so on. I want to move into now understanding a bit more about the training itself. You’ve referred a couple of times to some tools and I’m sure people watching this now are going to be curious, definitely going to want to find out a bit more about the training. Can we move in that direction?

Dan: Absolutely. Sure.

About the mediator

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As a teacher and practitioner of the transformative approach, Dan helps parties have a constructive conversation about their differences. He received his law degree, cum laude, from the University of Minnesota School of Law, his M.A. in Counseling Psychology from the University of Minnesota, and his B.A., with honors, from the University of California at Berkeley. Although he is licensed to practice law in Minnesota, he prefers to practice mediat... View Mediator