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

A Kinder Gentler Mediation

A Kinder, Gentler Mediation

From Minnesota Law & Politics, February 2000

Transformative mediation not only resolves disputes, but also leaves warring parties feeling all warm and fuzzy

By Rebecca Schmidt

A man and a woman sip raspberry tea while relaxing on an overstuffed love seat in a cozy apartment. They are relaxed and at ease with each other.  The room’s soft lighting combined with burning incense has set the perfect mood for. . . finalizing the terms of the couple’s divorce? Surprised? Don’t be. It’s simply a typical setting for a session of transformative mediation, a kinder, gentler approach to resolving disputes.

According to believers, a little understanding can go a long way, allowing even the most bitter clashes to disappear in just a few slightly new-agey sessions.  And that’s not all. The parties can literally be “transformed” by the process, gaining not only clarity about what they really want and why but also an arsenal of communication and decision-making skills that can be used the next time a battle comes their way.

The Problem with Problem-Solving Mediation

As the courts become increasingly swamped with family matters and civil suits, many would-be litigants are turning to mediation to defuse their conflicts. Despite this, the different styles of mediation and the goals of each approach are mostly unknown to the masses. Even experienced attorneys shoot “deer in the headlights” stares when asked to suggest which mediation style would be most appropriate for their clients. To many disputees, however, the confusion over “which type of mediation should be used when” just doesn’t matter.  They simply want a settlement without having to duke it out in court.  This explains why the “problem-solving” style of mediation is so popular.

Problem-solving mediation uses a third-party neutral to assist the parties in reaching a mutually acceptable settlement.  The process is designed to get the disputees to agree; the mediator directs the discussion and proposes solutions. They are the “experts,” and while the parties themselves set the issues for discussion, problem-solving mediators tend to steer conversations away from areas that could impede negotiations. Thus, if Jane Divorcée brings up John Divorcé’s entry into the mile-high club with Susie Stewardess on last year’s “business trip,” the mediator will discourage talk of the past, rein in flaring tempers, and focus the parties on moving toward an agreement. All roadblocks to settlement – such as anger, resentment, hostility, aggression and bitterness – must be controlled or pushed aside.

While this style of mediation can be valuable in many cases, some disputees find this approach to be less than satisfying. Take Jane and John.  Until John apologizes for flying the way-too-friendly skies, a “mutually” acceptable settlement isn’t going to happen.  Jane needs to hear an “I’m sorry” from the bottom of John’s heart, rather than his wallet, before any agreement will be truly acceptable.

The trouble is that problem-solving mediation doesn’t encourage such exchanges.  Jane, therefore, will be stuck with some major unresolved emotional issues if she agrees to a settlement before dealing with her underlying anger and hurt.  Although the mediator may proclaim the settlement to be a “win-win” resolution, Jane will end up feeling like a loser. This is what transformative mediation hopes to prevent.

Empowering People to Solve Their Own Problems

For parties who, like Jane, are more concerned with getting an apology than a settlement, transformative mediation is the way to go.  This mediation style has become popular of late, thanks to the 1994 publication of Robert Bush and Joe Folger’s book, The Promise of Mediation, which describes the transformative approach.  While both transformative and problem-solving mediation use third-party neutrals, the similarities end there. Transformative mediation does not focus on settlement but rather “empowerment” of the parties to make better decisions for themselves.  It also trains parties to consider the views, opinions and feelings of the other. If the parties end up with a mutually acceptable agreement as the by-product of their empowerment, great. If not, that’s OK, too, as long as the disputees have clarified their own goals and recognized their soon-to-be-ex or former business associate as a human being.

Since transformative mediation depends on the parties’ direct participation in the sessions, it’s crucial that the disputees feel comfortable throughout the process. Dan Simon, one of the Twin Cities’ leading transformative mediators, has created an informal atmosphere for his clients by holding the sessions in his Grand Avenue apartment. While his cozy furniture is a nice touch, Simon knows that disputees won’t let their guard down on the basis of a room’s atmosphere alone. He, like all good transformative mediators, lets the parties set the issues to be discussed during sessions and refrains from directing the conversation. His job is to “follow the parties around,” helping them to clarify their interests and goals. If Jane Divorcée gets emotional, for example, he’s there to encourage the discussion of and expression of that emotion, as both are integral to empowerment and recognition.

Simon, who’s been called “Swami” and a “miracle worker” by his clients, attributes the success of transformative mediation to the “natural desire to understand one another and to treat each other fairly.” That “natural desire,” according to Simon, is often hampered by the traditional legal process. And he should know. Growing up in a family of lawyers and having practiced law himself, he saw how emotional issues underlying disputes can be ignored in an adversarial system. Believing there must be a better way, Simon went back to school, obtained a master’s in counseling psychology, and made the leap from attorney to transformative mediator. “People in conflict usually feel defensive and self-absorbed. When I take them seriously, they become calmer and more understanding of each other. So my goal is to take their concerns seriously and let them do the rest.”

Lee Mahoney, a former client of Simon’s, can attest to the wonders of transformative mediation. Having had several not-so-great experiences with the legal process over a construction contract dispute, he was willing to try something new. And he’s glad he did. Instead of racking up attorney’s fees and going  back to court, his case was settled during one transformative mediation session. According to Mahoney, “there was a larger emotional and psychological issue that had to be dealt with besides the legal issues that was bringing me to court.  Dan allowed us [the parties] to talk to each other. It was mysterious how Dan did it, but he knew when and how to come in and guide us.” Mahoney’s experience with transformative mediation is telling of the impact the approach can have on the parties. “I believe in the humanity of this process.”

Spoken like a truly transformed being.


In all of the cases that I have referred to Dan, the clients have been very pleased with him and his process and they have always reached durable settlements very efficiently.
- Marjorie Rapp, Attorney, Minneapolis, MN