Category Archives: transformative mediation

“The age of passive deference to professional advice is over”

Julie Macfarlane, B.A., LL.M. (London), Ph.D. (C.N.N.A.)

This quotation is taken from a recent post on Dr. Julie Macfarlane‘s blog on the National Self-Represented Litigants Project that takes its mandate from the National Self-Represented Litigants (SRL’s) Research Study, carried out, 2011-2013.

There has been wide-spread growth of SRLs in Ontario, seemingly because many in our society simply cannot afford lawyers but also earn too much to be eligible for legal aid.

The thrust of her post is that self-represented litigants (SRLs) want help from lawyers in order to be effective self-advocates. In other words, they want coaching from lawyers so they, the SRLs, can better represent themselves in the justice system. While providing such a service may seem counter-intuitive to lawyers, Dr. Macfarlane argues it is in their own interest, not to mention the judiciary’s as well.

From the meekest to the most assertive, SRLs in my study told me over and over that they do not want to be simply told what to do by an advisor who seemed to have their own agenda and appeared uninterested in their concerns, expectations and needs. They did not want to have “expert advice” rammed down their throats before they felt that they have really been listened to and their point of view acknowledged and taken seriously.

In my view, this observation about SRL aversion to expert advice also validates the promise of mediation. For mediation to be a real alternative to other dispute resolution processes, such as litigation, self-determination must be paramount, and not just with regard to substantive disputes but also with respect to the process itself. All too often in family mediation, the community of practitioners assumes that to mediate separation, divorce, parenting agreements, financial issues, the mediator must have substantive qualifications in those areas by having trained as a lawyer or a therapist. When mediators are informed or influenced by training and mind sets of disciplines other than conflict resolution or intervention, it is invariably at the cost of party self-determination.

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Mobile technology and mediation

Giuseppe Leone

Giuseppe Leone of the Virtual Mediation Laboratory in Hawaii continues to lead the pack in testing and demonstrating innovative means to give people around the world access to the mediators they want to work with. Initially, he and volunteer mediators have been showing how online video technology allows parties and mediators to talk and see each other with an Internet connection. Now he is exploring mobile technology to the same end for those with PCs, Macs, or smartphones. Here’s a 19-minute YouTube video showing how it’s done:

Some Observations

  1. Not all mediators work in the way demonstrated in the video. The outcome here is essentially similar to what could be achieved in litigation but with greater efficiency and less cost. Apart from those benefits, nothing essential has changed for the parties in terms of dealing with the effects of conflict on how they see themselves or others. Relational mediation addresses these effects directly. For example, rather than relying on the mediator to gather information and clarify issues, the empowerment of the parties is supported to whatever ends the parties themselves decide is important to them. When parties control the process and take ownership of it, personal strength is enhanced rather than diminished by having a third person direct the resolution process. And individual strength and responsibility may lead to greater openness to the other which in turn may facilitate a constructive outcome, if that’s what the parties want
  2. With mobile technology, parties and mediators can be connected irrespective of what devices and operating systems are being used, whether PCs and Windows, Macs and OS X, iPhones and iOS, or smartphones and Android systems.
  3. In the same way, that phone numbers no longer are associated with locations but rather with people wherever they find themselves, face-to-face mediation no longer is yoked to meeting in a room, but can be held through the virtual presence obtained by these new forms of connection.

These are exciting new developments that mediators can now offer to clients.

Related articles
  • Honolulu’s Giuseppe Leone launching Mobile Mediation (bizjournals.com)

Marital Mediation, say what?

In the post yesterday featuring the UK Ministry of Justice’s recently released video on family mediation, a distinction was drawn between couples counselling and family mediation (i.e., divorce or separation mediation).

Patti Murphy, Divorce, Couples and Family Mediation

Patti Murphy, a family mediator based in Brooklyn poses the questions:

But what if the couple didn’t want an archaeological exploration of past family behavior or accept that the issues between them were so insurmountable that the only answer was to walk away?  Then what?
The good news is – there is another option: Couples Mediation.  It’s really more of a new application than a new process.  Mediators have been helping couples resolve conflicts for years … but it turns out these same skills can be used to avoid, rather than ease, divorce!  This process, (also called “Marital Mediation” for officially married couples) is helpful for those couples that want to stay together.

In my own view, unlike therapy, it’s not about fixing or curing people, but rather it’s about supporting conversations that can bring both people greater clarity on their situation, on the options they have, and on what to do to move forward.

What does on-line transformative mediation look like?

Giuseppe Leone

Giuseppe Leone is a mediator based in Hawaii who founded the virtualmediationlab.com, a pilot project sponsored by the Hawaii chapter of the Association for Conflict Resolution.  The project’s objectives are to help mediators wherever they are located to practise and develop their skills, and to learn how to mediate on-line using Skype™as a platform.

In the video of a role play below, Dan Simon, a certified Transformative Mediator™, supports people in their conversation about alleged gender discrimination in the workplace.  The role play itself runs for the first 47 minutes or so; the rest of the recording is devoted to a debrief led by Giuseppe of what happened in the mediation, how it was experienced by the role players, and where the main differences lie between the transformative model and the prevalent interest-based model:

Transformative mediation explained in Italian with English sub-titles

Here’s a video of a quite interesting interview by Guiseppe Leone, Virtual Mediation Lab in Hawaii, of Carlo Mosca, head of ADR Quadra’s scientific committee in Italy.  Carlo, as a transformative mediator, covers many of the distinguishing features of this approach to ADR practice in non-technical language.  The video also demonstrates the growing interest in transformative mediation outside North America, whether in Italy, the Balkans, Scandinavia, or Africa.

Family law understood as a system of coercion

In an opinion piece in Minneapolis’s Star-Tribune last month, the Hon. Bruce Peterson, district court judge inHennepin County, Minnesota, writes that it is time “to consider taking divorce out of the hands of lawyers and judges and putting it in the hands of the parties and whatever advisers they choose.”

The worst feature of the current system[family law] is the conflict it generates. We call it an adversary system, but a better term would be a coercion system. The parties bash each other in order to persuade the judge to coerce the other person to do something they don’t want to do.

A wise friend of mine, a psychologist, once told me that the normal response of a healthy adult when faced with coercion is to resist. Sensing impending coercion, people often come to court defensive, anxious, with their heels dug in. Despite thoughtful, creative strides by Minnesota courts to reduce conflict, the specter of coercion still haunts divorce cases and promotes conflict. And it is conflict that hurts children, regardless of the custody label.

Dan Simon, a transformative mediator who practises in the Twin Cities of Minnesota, contacted Judge Peterson:

In response to my email he wrote, “I think of transformative mediation as one of the hopeful tools in this field and believe it will have an ever more important role to play.” That email led to an exchange that resulted in Judge Peterson visiting my office, where I showed him a video of myself mediating a parenting dispute. Later he emailed me, “Thank you again for taking the time to show me your process. I am very impressed at the discipline and subjugation of ego it requires. Let’s stay in touch, big changes are coming.”

Transformative mediation connected with courts?

With reference to this question, here’s an excerpt from a guest post that appeared a couple of days ago on Dan Simon’s blog:

There are times when we are asked to take cases that the judges have previously heard. The judges know these cases will be difficult, and there is very little that they can do to find a lasting solution. These repeat cases are not really about the auto repairs, the shared driveway, the broken fence, the daycare contract or the loud noise. The problem is the crisis in the interaction between the disputants. They are not able to talk to one another so they call the police or file a suit. When given the opportunity to sit down with the other in mediation, transformative mediators support the participants’ conversation in ways that enable them to regain their own strength and clarity to make decisions and their ability to respond to one another in a way that allows them to move forward.

Some people feel that transformative mediation’s lack of apparent structure precludes ordered progress. Actually, transformative mediation does have structure in which participants are introduced to the context of the mediation, explore the situation and possible options, deliberate and make informed decisions. Transformative mediators support participants as they exercise self-determination in how, and in what order they wish to work through this process. Our experience would suggest that this takes no longer than in other mediation frameworks.

Read the whole blog post here.

The magic of mediation or How practice is disconnected from theory

(Originally published by the Institute for the Study of Conflict Transformation on June 20, 2012 under the title, Letting Clients Take Responsibility)

Recently, I mediated with a young couple where neither of the two had completed high school. As a transformative practitioner, I tried to ensure that I supported, rather than supplanted, their control of their conversation, both what they wished to say to each other and how they wished to say it. Many mediators who take the three-day basic transformative mediation training often wonder whether this approach can be helpful only to people who are articulate and have a post-secondary education. One of the beliefs transformative practitioners have is that integral to human nature is continuing internal work in each of us to reconcile our need for personal autonomy with our need for openness and responsiveness to others. Indeed, this is exactly where conflict has such a pernicious effect: both these deep needs are frustrated and the quality of interaction deteriorates. Time and again, as was demonstrated to me in the case with the young couple, this belief in basic human needs for agency and connection is validated. Verbal skills are not the necessary condition for how helpful a transformative approach may be to mediation clients; rather, it is the basic human need to understand one’s self and to be understood by others.

But I’m getting ahead of myself in discussing this case that powerfully demonstrated to me the power of decision-making on both process and substance when it is vested entirely in the clients. The first 90 minutes of the mediation unfolded with positions being staked out in increasingly heated emotion: the quality of the conflict interaction was steadily degrading and the clients were stuck. One then requested a break to go outside and smoke a cigarette; the other client used the break to smoke a cigarette as well. As far as I know, they did not communicate with each other during the break. When the mediation resumed, the tone of their conversation had changed markedly. One offered a revised position with a concession to the other; this offer was quickly accepted. This turn in the conversation effectively settled all but one of their issues, which they agreed to address subsequently. So what happened here?

Often practitioners when faced with an unanticipated ‘positive’ development in mediation will answer this question by invoking the ‘magic of mediation’. In other words, not being able to explain what happened, they revert to talk about the art of mediation and how settlement can rise like a phoenix from the ashes in some indescribable and indefinable way. Speaking of ashes, one could just as easily in the case I’ve been discussing explain the change in terms of the magic of smoking! Neither explanation is satisfactory, and both illustrate the disconnect between mediation theory and practice: as Yogi Berra is supposed to have said, in theory, there’s no difference between theory and practice, but in practice there is. What if there was greater consistency between theory and practice in mediation?

As a transformative mediator, I would explain what happened here in the following way. I supported the clients’ conversation, the points they wished to make to each other, and their positions on the different issues under discussion. An element of this support consisted of my making the observation at a judicious moment in their conversation that they seemed quite far apart on the issues, with a brief summary of what their respective positions were. I then turned it back to them by asking what they wanted to do having reached this point in the conversation, e.g., did they wish to end the mediation; did they want to talk about something else in their conversation; did they wish to think things over and schedule another session to talk some more. I mentioned that this was not an exhaustive list but simply illustrative of the sorts of decisions they could now make. They didn’t reply directly to my summary of their conversation or my question about what they wished to do. Instead, they resumed their negative, unproductive conversation. After an interval of party-to-party interaction, I repeated my summary of what they had been talking about, asked whether they were finding the conversation helpful, and what they now wished to do. Again, they resumed the downward spiral of their interaction. This cycle of summarizing and indicating a decision point may have been repeated one or more times further; frankly, I can’t remember. The important point is they then called for a break and came back to the mediation with a concrete give-and-take proposal that led to an agreed outcome. By limiting myself to interventions in their conversation that simply summarized what they had been saying and asking what they wished to then do, I took on no responsibility for getting them unstuck. Rather, I would argue that it became very clear to them that both their differences and the process for addressing them were their responsibility. Given their understanding of their options and resources, they could make whatever decisions they felt called on to make. In simple terms, I accompanied each of them to the edge of the cliff and asked what they wanted. In the event, neither wished to jump (and pursue their dispute through litigation); apparently, after thinking over the situation, they both wished to resolve matters themselves. Key to what took place was their accepting personal responsibility, their reflecting on what possibilities were available, and their making their own decisions about their lives. Instead of offering them my problem-solving abilities, I helped by supporting their conversation wherever they decided to take it: from high emotion to an eventually quieter, more reasoned tone where one made a constructive offer to the other.

Mediators using other models may reply that they too provide such support from their ‘tool box’ of interventions. The point though is my interventions are not part of a repertoire of techniques to assist parties, by separating the problems from the people, to reach settlements that the mediator considers fair. Rather, my mediator moves are carried out with only one objective in mind, the only objective in transformative practice, namely support for each party’s shift to relatively greater empowerment and for each party’s shift to recognition of the other. Whether they settle or not is entirely up to them, as are all other decisions before them.

About the guest blogger:Towards the end of a long and varied 33-year career in Canada’s civil service, Arnold Zeman was trained in ADR by the Department of Justice. On leaving the civil service, he completed graduate studies in conflict resolution at Carleton University. Dissatisfied with what he saw as the disjunction between mediation theory and practice, he undertook his first training in 2007 by the Institute for the Study of Conflict Transformation, and has identified as a transformative practitioner since then. He resides in Ottawa where he has a private mediation practice and is on the roster for court-connected family mediation services. He blogs, all too infrequently he admits, at dialogicmediation.com.

French-language video clip of transformative mediation opening

Here’s a clip of the opening statement in French of a bilingual transformative mediator, John Peter Weldon. It’s a case of alleged harassment made by an elementary school student against the school principal.  Judging from the ages of the participants, this is likely a recording of a role-play. It shows the viability of transformative practice beyond the English-speaking world, with parties of all ages and education-levels, and in difficult, sensitive matters such as harassment.

When worlds collide, or seeing conflict as a crisis in human interaction

Herzog, Paris Café, 1959, inkjet print. Collection of the artist, Courtesy of Equinox Gallery (Globe and Mail, online)

The starting point for the transformative model of mediation is an understanding of the nature of conflict as a crisis in human interaction. In this view, the crisis is characterized by two kinds of adverse impacts. First, in conflict each individual has a sense of her own diminished capacity to move past the situation. Second, each individual becomes more self-absorbed and, consequently, unable to see and hear the other person in an undistorted way. The transformative model then articulates how conversation, whether or not with an impartial third person, can foster the conditions within which people may move beyond their circumstances.

There is a poignant illustration of this power of conversation in Marsha Lederman’s feature article, “The collision: Fred Herzog, the Holocaust and me”, that appeared in The Globe and Mail on Saturday, May 5th, and online here. (Lederman describes Herzog “as arguably [Vancouver's] most important — if for many years, obscure — visual documentarian.”)

Last fall, I had occasion to interview Herzog, who is 81, at his modest home on the west side of Vancouver. The book Fred Herzog: Photographs was being published, and it was an opportunity to talk about his life, his method, the impact of his late-in-life success.

The ‘collision’ or conflict occurs when Herzog, in response to a question, refers to the so-called Holocaust:

It’s a question about his early time in Toronto that leads to the Holocaust. We’re about 30 minutes into our conversation when I ask whether he, as a German, experienced any racism in postwar Toronto; I note that his employer – an importer of glass and china – was Jewish.

Herzog explains that George Zimmer, with whom he got along very well, had had a business in East Prussia before the war, a big furniture business, and that he must have sold it at a comparatively low price, given the times.

“He never complained to me about that,” said Herzog. “That marks him as an unusual person, because even now, many of the people I know, many doctors, are Jewish. And there isn’t one who spares me hearing about relatives who were, you know, treated badly during the war and the so-called Holocaust.”

My throat goes tight.

Read Lederman’s entire piece here and note how the conversations between Lederman and Herzog move for each of them through personal shock, reflection, and then openness to the other.

Listen to Herzog in a later conversation:

The reason I gave you the wrong answer to the Holocaust. … To begin with, when I grew up in Germany after the war, nobody ever talked about the Holocaust. Nobody. Not my boss, not the other employees. Nobody there ever talked about the Holocaust. It was actually a seamless denial. And it was only after I had left Germany, I think there were some trials in West Germany where the Holocaust problem was driven home to Germans in such a way that they could no longer ignore it. … I remember reading right after the war that there were six million Jews killed and I talked to people about that and most people said they had no idea. And I think on the other hand some people must have had an idea that bad things were happening but simply put their head in the sand.

And Lederman’s insight into what she has experienced:

After months of living with this, I’m surprised: I am able, I think, to see it all through Herzog’s battered lens.

I see his photography as the expression of a victim whose pain was not deemed valid in light of the atrocities of his countrymen and what others suffered; a young man who came to Canada and had to remain silent, but whose work speaks volumes.

Related articles
  • The collision: Fred Herzog, the Holocaust and me (theglobeandmail.com)