Simon Mediation - Dan Simon, M.A., J.D.

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Dan Simon, M.A., J.D.

The Transformative Approach to Mediation vs. the Mainstream Approach

I the video below, here’s what I say about the interest-based, Facilitative or problem-solving approach to mediation, along with an introduction to the very different transformative approach:

Facilitative: The next step of the evolution of mediation [that is, the next step after the very backward settlement-conference approach used by many retired judges and long-time litigator-mediators] is the interest based or problem solving approach [also known as Facilitative], where the mediator sees his or her role as helping the parties have a detailed conversation about what their interests are, in the hope that, with more detail being shared, the parties will be able to figure out a way to meet everybody’s needs or maximize the meeting of each side’s needs.That’s the interest based approach, which is generally how mediation is taught nowadays. It’s the interest based, also known as the facilitative model of mediation. That does indeed to me seem like an improvement over the model where the mediator just does whatever he or she can do to get people to compromise. The interest based approach at least offers the possibility of a win-win result.

Transformative: I myself have adopted the transformative mode which, this is my bias, but I see as the next step in the evolution of mediation. The transformative model looks at conflict as being essentially a crisis in the interaction between the parties. That is, when people are in conflict, they tend to feel both relatively weaker and less competent than normal, and they also, therefore, because they’re feeling weaker and threatened and unsure what to do themselves, they tend not to also be as able to have compassion or understanding for the other person. You’ve got two parties, either individuals or countries or corporations, but two people or groups that are feeling threatened by each other and they are behaving therefore in ways that are designed to defend themselves from each other, but often are perceived by the other side as threatening; and so there’s the vicious cycle of both sides feeling threatened by each other and therefore, doing things that threaten the other side and it’s a vicious cycle. It’s also known as the escalation of conflict. You can apply it to difficult international situations. You can apply it to people who have really expensive litigation with each other. You can apply it to husbands and wives who are deciding to get divorced. That escalation in the conflict or degeneration of the interaction is another way to describe it. That’s what we’re trying to focus on in the transformative model. We assume that people, even in that state where they’re feeling weak and less able to have compassion for each other, by the virtue of the fact that they’re human beings, we’re assuming that they have both the desire and the ability to regain a sense of both strength and autonomy and good self care. Also when they’re feeling like they’re taking better care of themselves and are feeling calmer and more secure, they’re also able to get back in touch with their natural human tendency toward compassion and understanding for the other person.

Interview by CuttingEdgeLaw.com