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


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

Transformative Mediation – Dan Simon Part 1 Transcript

My name is Dan Simon. I’m a transformative mediator. I’ve been doing that for 10 years now. I started out, went straight through college and law school. I think I got through law school before I really knew what I wanted to do with my life.

I started to get clearer about what I wanted to do with my life while I was doing my first job out of law school, which was writing head notes for West Publishing.

I decided to go back to school to study psychology. Got a masters in counseling psychology. Then, when I finished the masters, decided to go on my own doing mediation.

In the interim there, before I went back to school studying psychology, I worked at a law firm doing business litigation for one year. Actually, that’s where I first noticed that the stuff we were doing as lawyers was not really directly addressing the conflict as I saw it.

It seemed to me that our job as lawyers was to do whatever we could to mess with the other side in the hopes that that would motivate them to cave in, give our clients some money.

Though our clients often were satisfied with what we did, it’s not that their conflict had ever really been resolved. At some point it was over, and they’d given up with it, and they thought that we had done a decent job either getting them some money or helping keep their costs to a minimum.

Bottom line is they were never at a better place with the conflict than when they started. They still thought the other side was full of it, was a liar, a cheater, or worse. They may have decided to stop fighting, but all that had ended was the fight that we helped them start. It had never really gone back and addressed whatever started the problem in the first place.

I think there is a wide spectrum of what is considered mediation or what is called mediation. From what I’ve gathered, from anecdotes from the lawyers I’ve talked to who practice litigation, and from the mediators I’ve talked to, the most common approach to mediation, or so called mediation, in the world of litigation is where the mediator keeps the parties separate from each other and does his or her best to persuade each side to compromise.

They do that by emphasizing to each side the weaknesses of their case, emphasizing the cost of litigation, and basically doing whatever else they can do to get the folks to come closer together in terms of, most often, a settlement amount.

That is considered mediation in the sense that it’s voluntary. It’s voluntary in the sense that the mediator has no official authority to enforce any sort of settlement or to require anybody to come to a settlement. The mediator, though, generally, in that context, sees his role as being to get a settlement done and use whatever methods he or she can to get the deal done.

What I would say is the next step of the evolution of mediation is the interest-based or problem solving approaches where the mediator sees his or her role as helping with the parties have a detailed conversation about what their interests are, in the hopes that, with more detail being shared, the parties are 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 settlement.

I, myself, have adapted the transformative model, which, this is my bias, but I see it 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 of what to do themselves, they tend to also not be as able to have compassion or understanding for the other person.

So you’ve got two parties, either individuals, or countries, or corporations, but two people or groups that are feeling threatened by each other. They’re behaving, therefore, in ways that are designed to defend themselves from each other, but often are perceived by the other side as threatening. So there’s the vicious cycle of both sides feeling threatened by each other, and therefore doing things that threaten the other side. 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 try to focus on in the transformative model. We assume that people, even in that state, where they are feeling weak and less able to have compassion for each other, by the virtue of the fact that they are human beings, we are assuming that they have both the desire and the ability to regain a sense of both strength and autonomy and good self-care, and also, when they’re feeling like they’re taking better care of themselves, and they’re 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.

The hope is that if we can help them shift the interaction in that direction of greater strength and compassion, the problem solving becomes much easier, and their generally, we assume, able to largely do that on their own without us directing the conversation very much.

What we do as transformative mediators is support the conversation, because we basically believe that people, even in the midst of that difficult conflict . . . The reason it’s so difficult for them is because it’s very distressing for us humans to be in a state where we are feeling weakened and disconnected from this other person. We prefer, we humans, to feel both that we’re taking good care of ourself and good care of the other person, or at least interacting with them in a positive way.

So, we’re sitting there hating that. The mediator acts as a supporter of those inclinations that people naturally have, we assume, to do things differently, to do things that help them in both of those aspects of it, both their self-care and their care of each other.

When we hear somebody calling the other person a filthy, dirty, rotten, bad person, we are right there supporting the conversation by saying, “Ah, so you’re saying this other person is a filthy, rotten bad person.”

We believe in this model that just simply by reflecting what the party has said, without any spin on it, without sugarcoating it, that person is given another opportunity to do whatever they want to do with that statement. They may want to embellish it, amplify it, make it harsher. They may want to take it back and say, “Okay. They’re not a completely rotten person, I’m just saying that they treated me rottenly this one time.” They may clarify it, but what we’re doing is supporting their natural tendency to want to shift toward greater strength and compassion.

We, who do this work, really get to see it happen in beautiful ways. We see people, kind of surprisingly quickly and easily, get to a better place, and we also see that the stuff they say in the worst moments of the conflict, that stuff is never the whole story. There’s always more to it.

And in fact, in the divorce world, it’s kind of well understood that the most difficult divorces come from a situation where at least one party is feeling heartbroken and betrayed and hurt that they’re losing this person who they are still in love with. That’s an obvious case where the harshest words are really attached to some deep connection. So the potential is there, if you support people in saying what they need to say, for them to get their own clarity and get to a better place with it.

"I recently had a phone consultation with another mediator who was working with one of my clients. From the moment we got on the phone, the guy never stopped talking. No wonder my client felt overwhelmed in his presence. When you consult with Dan Simon, he never stops listening. This is what distressed couples need. They do not need another person talking at them or pressuring them into making critical decisions about their lives before they're ready."  (Here's Betsy's website.)
- Betsy Sansby, LMFT, Minnetonka, MN