An article in the June issue of For the Defense offers guidance on selecting the best mediator for a particular case. Among the different styles of mediator (evaluative, facilitate, hybrid), one that is often overlooked is a style denominated as the “transformative” mediator. Why is this style disfavored? I decided to dig a little deeper.
According to the oracle of all truth, Wikipedia, “the transformative approach . . . takes an essentially social/communicative view of human conflict, [in which] . . . a conflict represents first and foremost a crisis in some human interaction—an interactional crisis with a somewhat common and predictable character. Specifically, the occurrence of conflict tends to destabilize the parties’ experience of both self and other, so that the parties interact in ways that are both more vulnerable and more self-absorbed than they did before the conflict. Further, these negative dynamics often feed into each other on all sides as the parties interact, in a vicious circle that intensifies each party’s sense of weakness and self-absorption. As a result, the interaction between the parties quickly degenerates and assumes a mutually destructive, alienating, and dehumanizing character.”*
This all very Heideggerian and existential, but will it settle cases? Well, it seems that may not be the only goal. “Success is measured not by settlement per se but by party shifts toward personal strength, interpersonal responsiveness and constructive interaction. As parties talk together and listen to each other, they build new understandings of themselves and their situation, critically examine the possibilities, and make their own decisions. Those decisions can include settlement agreements, but no one is coerced into any decision or agreement. The outcomes are entirely in the parties’ own hands and subject to their own choices. Effective mediator practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging party deliberation and decision-making, and inter-party perspective-taking, in various ways.”*
There might be something to this. In my experience mediating disputes that are particularly emotionally charged, attorneys can walk away quite satisfied with a clean, buttoned-up settlement, but the parties themselves come away feeling they “sold” their case too cheaply (or “bought” their peace at an unfair price). Mediations that dispense too quickly with the “heart” of the dispute and rush into exchanging dollar figures based purely on estimates of damages or jury verdict potential can leave plaintiffs feeling like they haven’t been heard. While a fat settlement can sound appealing, it usually won’t heal all wounds. This is particularly true in catastrophic cases involving the loss of a loved one or legitimate sexual harassment suits where the plaintiff feels he or she was just “bought off,” or paid to shut up.
Other cases can be difficult to settle where (1) there is no real money available to fund a satisfactory settlement; or (2) there are residual questions that need answers money can’t buy (“What caused the car to catch on fire?” or “Why wasn’t he fired long ago if others complained?”) Taking the “usual” approach, focusing purely on dollars and cents, might not get the job done. In these circumstances, it can be very healthy and helpful for the mediator to engage in the kind of counseling approach unique to transformative mediation. I’ve also been involved in cases (some very serious) that went away with no exchange of money where the defendant’s counsel or a knowledgeable employee took the time to explain to grieving parties exactly what happened and how it happened. Plaintiffs may want most of all just to vent frustration or anger. A party that feels he/she has been finally “heard” can be more reasonable, making it possible to settle an otherwise impossible case to settle.
Transformative mediators certainly are not appropriate to every dispute. For example, when I’ve accompanied very skilled or sophisticated client representatives to mediations, they look for ways to control the negotiation process, and can be incapable of suspending the factual or legal controversy long enough to permit a wounded plaintiff simply to be heard. They want only to drive home the point that the plaintiff is wrong and she will lose at trial. In this environment, neither the plaintiff nor the defendant will believe their needs are being met and compromise becomes unlikely.
* Citing, Bush, R. A. B., & Pope, S. G. , “Changing the quality of conflict interaction: The principles and practice of transformative mediation,” Pepperdine Dispute Resolution Law Journal, 3(1), 67-96.