Transformative Mediation: Taking a Risk and Letting Go By Andrew Thomas

Part I:

As the popularity and institutionalization of the mediation field continues to grow, and educators and academicians continue to analyze the theory that drives our practice, the more our truths and beliefs about our practice will be challenged. For years the spectrum of ADR processes, although they all involve third party intervention, were defined by key functions and
characteristics that are distinctly different from each other. Also we have developed a basic understanding of the differences or descriptive adjectives that distinguishes fact-finding from negotiation, facilitation from conciliation, conciliation from mediation and mediation from arbitration.However, with the introduction of the Transformative Mediation orientation, mediation practices are now distinguished by mediator’s beliefs, attitudes, behaviors and
intent. With the increasing popularity of Transformative mediation more and more mediators are questioning their practice and trying to comprehend the hallmarks and premise
of a Transformative orientation.

On the other hand there are a number of mediation practitioners convinced that Transformative Mediation does not work, they contend it lacks control and structure, it’s counseling and isn’t what parties are looking for. Fortunately, there are numerous studies and a wide body of research data that refute these accusations. In fact the research clearly documents that parties in mediation want exactly the kind of mediation process promoted in the Transformative orientation. In study after study when parties are asked what they liked most about the mediation process they respond; it provided them an opportunity to fully tell their story and be
heard; to deal with issues they felt were important; and to understand the others person’s point of view. As a Transformative Mediation trainer I have witnessed how difficult it is for some mediators to trust the research, take a risk and let go of old beliefs about conflict, people’s capacity to be responsive to each other and the role and goal of mediation.

Over the past fifteen years the practice of mediation has advanced tremendously and grown as a profession nationally and internationally. Although mediation continues to be used as
a universal catchall term to define a variety of third party neutral processes, a number of consumers of alternative dispute resolution services have become educated and sophisticated
enough to specify the type of mediation orientation they are looking for in mediators. Since the publishing of the of the book, The Promise of Mediation; By Bush and Folger, 1994, Jossey Bass, the practice of mediation has been heavily debated and compartmentalized. Bush and Folger suggest that with the institutionalization of mediation, mediators have come under increasing pressure to get agreement and solve problems, missing a key value of mediation which is an opportunity for personal growth, compassion for others and change in human interaction. As a result of the years of theory to practice analysis of mediation, mediators’ practice has been
compartmentalized as facilitative, directive, evaluative, narrative and transformative depending on how the mediator defines his or her third party intervention role, goal and purpose.

Recognizing the positive qualities of Transformative Mediation accepting the transformative orientation is a struggle for many mediators, because they are not willing to take a risk and let go of old beliefs. The dilemma is letting go vs. holding on to beliefs. There are some things in life that are worth holding on to e.g. positive attitude, memories of good times, positive relationships with good people and faith. Like in life, in mediation there are things you should hold on to also, for example, compassion for the process, valuing self-determination, and trust in the process.



Andrew Thomas, President
ALT Associates Conflict Management Consultants
Lake Mary, Florida
athomas@ALTassociates.com

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Lessons from Facebook

As the owner of a mediation firm, I am always looking for new ways to market my business. I have recently been reading the book, 33 Million People in the Room by Juliette Powell. In the book, Ms. Powell encourages the use of social networks to expand the reach of your business and details the pros and cons of the most popular networks.

If you are reading this, you already know that I have a blog and am a devotee of Twitter. After reading the book, I wanted to delve a little deeper into the world of social media...this weekend I took the plunge. I joined Facebook. Some of you are probably thinking, so what? Everyone, including my mother and grandmother are on Facebook! You're right, since joining, I have re-acquainting myself with friends and associates from years gone by. I am also making new friends that share my interests.

For me, Facebook represented a point of no return; the end of innocence. Once you enter, you are officially trapped in the Matrix and can never return home to Kansas. In one sense I was totally right. Since joining, I have been a little obsessed with it. My heart quickens with excitement from every notification buzz of my blackberry. When my husband asked me to run an errand with him, I declined in favor of building my Facebook page.

I have to confess that I was also overly dramatic about the evils of Facebook. I was really concerned about having too much personal information on the web. There was no need for all the worry, there are a lot of privacy controls on Facebook. Ms. Powell was correct, it is a great way to expand your network. But I am glad that I took the time to learn a little about the network prior to joining. Once I joined I had a clear vision of what I wanted to accomplish on Facebook rather than just aimlessly posting random musings.

What does this all mean? Ever so often I need my world to be challenged in order to grow. Growth takes many forms: a book with new ideas, connecting with friends or meeting new friends, or making mistakes. Whatever the form, growth is ultimately good. I gain a new perspective on myself and the world around me.

I spend a lot of time trying to convince businesses of the value of utilizing mediation. Once I cross the information hurdle with a new business, they find that mediation is a useful tool to resolve corporate conflicts. Though I work hard to get others to expand their horizons, I was unwilling to expand my own. By opening myself to Facebook, I had the opportunity to grow both personally and professionally.

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Make Him an Offer He Can't Refuse

Last weekend, my husband discovered that one of our on demand channels had all three Godfather movies on demand for free. Over the last week, we have enjoyed a mini movie festival of the Godfather I, II, & III. Looking at the films again I have to tip my hat to the artistry of Coppola. Beyond the violence, the movies are a beautiful tapestry of characters perfectly weaved together on the screen.

In part one, we see various people having an audience with the iconic Vito Corleone (played by Marlon Brando). Instead of using the legal system, people went to the "Godfather" to get street justice. In a way, the Godfather was the neighborhood association president who wasn't afraid to make an offer that couldn't be refused.

The state of Florida has tried to prevent the use of self-help or street justice in disputes between neighborhood or homeowner associations and their homeowners. Florida Statute 720.311 allows for presuit mediation prior to filing a claim in court.

Your home is your castle. When your castle is disrupted by conflicts with your neighbors it makes life very unpleasant. Taking formal legal action is certainly a valid option. Mediation is also a valid option in that the warring factions may find resolution through utilization of a fair and impartial mediator. Mediation allows the parties to address the underlying issues directly. This can lead to faster resolution of conflict.

The Godfather is a great series of movies but no one wants to live out that type of conflict resolution in the same neighborhood where they raise their family. Mediation is a valid way to settle conflicts with your local neighborhood association. You never know, the other party may make you an offer that you can't refuse.

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Remembering Senator Kennedy

Edward Moore Kennedy (1939-2009)

No matter your political views, the passing of Kennedy marks the end of an important era in American political history, the official end of Camelot. As the second longest serving senator, his legal footprint is hard to ignore. As a child of the 70s, the concept of a senate without a Kennedy is foreign to me.

Some of Kennedy's legal contributions include:

• participated in the nomination hearings for every member of the current Supreme Court with the exception of Justice Sonia Sotomayor
• first speech on the senate floor was on the Civil Rights Act of 1964, which outlawed segregation in public accommodations
• first major bill he managed on the Senate floor was the Immigration Act of 1965 that eliminated discriminatory immigration quotas
• an original cosponsor of the Education for All Handicapped Children Act, which later became the Individuals with Disabilities Education Act
• chief sponsor in 1982 of the Voting Rights Act Amendments, which led to increased minority representation in Congress and state legislatures nationwide
• During the 2000s, almost every bipartisan bill signed during the George W. Bush administration had significant involvement from Kennedy
• April 2006, Kennedy was selected by Time as one of "America's 10 Best Senators"

As the days continue to write the pages of history, it will be interesting to see how the senate changes in a post-Kennedy era. All eyes are now on Congress as the health care debate heats up. How will these negotiations take shape without the "lion of the senate".

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The Man Box

During the conference I had the pleasure of hearing Tony Porter speak about violence against women. Mr. Porter opened with a provocative question: Why is it that so much violence occurs in the presence of so many good men? He went on to directly address the men by evaluating the culture of being a man in America. He touched on everything from the movies they watch to the differences in the way men parent their sons and daughters.

This male culture was summed up in one term "the man box". The man box contains the collective socialization of men. It is where men hold men to a higher standard than women. It is where the notion that women are the weaker sex is kept. It is where men are taught that they are not allowed to cry or show too much emotion in public. Unfortunately, it is where violence against women is ignored by society. Essentially, when good men do nothing, violence continues to be perpetuated by a small number of bad men.

As a woman, sitting through the presentation, I thought, what have I put into my "woman box"? What life decisions have been altered due to the box that I place myself in? How have my views affected those around me?

The lesson of "the man box" is that I am a bit more conscious of my interconnectedness with the world around me. In other words, we are all our brother (and sister's) keeper. Whether it is domestic violence or merely lending a helping hand we all have some level of responsibility to those around us.

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The Power of An Apology

One of the sessions that I attended during the DRC convention was entitled: "Mediating Disputes That Do Not Involve Monetary Issues." The session was led by Andrew Thomas. Much of the discussion surrounded viewing a clip from the movie "The Purple House". In the film there is a mediation between the neighborhood association president and the new neighbors that painted their home in an unfavorable shade of purple.

Early on in the mediation, the new neighbors who are African-American state to the Caucasian neighborhood association president:

1. We didn't see anything in the paperwork that prevents our home from being purple.
   
2. Other people in the neighborhood have odd colored homes and they are not being fined by the neighborhood association.
   
3. I think your conflict is racially motivated.

As a mediator, what can be done to break this type of deadlock? This is the time to go beyond the monetary issues and address the underline emotion that are barriers to resolution. During the course of the discussion, the group came up with some things to consider when delving into the emotional side of mediation:

1. Set the protocol for conduct prior to the start of the mediation.
2. A facilitator must guide against personal attacks.
3. Be conscious of your personal triggers as a mediator.
4. Try to get to the real issues.
5. Determine if you can personally deal with the issue prior to addressing them with your clients.

When you move beyond the money, you can often get to the heart of the issue. In "The Purple House" the two parties were ultimately able to resolve their conflicts about the home. However, a decision concerning the house could not be made prior to an exchange of apologies on both sides. In the end, a neighborhood conflict that had went on for months was resolved using the power of an apology.

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Reflections from DRC Conference

Just got back from the DRC Conference in Orlando, Florida. It was my first conference and I really enjoyed it. It was great to exchange ideas with other mediators and gain new insight into the field of alternative dispute resolution. I gained a lot of good information that I plan to share with you in upcoming posts.

The conference opened Friday, August 21 with a Plenary Session. One of my memorable moments came from the remarks of Florida Chief Justice Peggy Quince. She commented on the importance of mediators in the Florida justice system. Florida has only 4.5 judges per 100,000 people in the population. In states of similar size, there are 7.3 judges per 100,000 people in the population.

Mediators play an important role in keeping the wheels of justice moving in the state of Florida because we give an alternative method of resolving cases. When these cases reach settlement this allows other litigants to get their day in court in a more timely manner.

Hearing this statistic reaffirmed my dedication to the field of mediation. I have a greater commitment to provide professional, confidential, and timely service to my clients.

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In Search of the Common Chorus

I just watched a clip from this year's World Science Festival. I saw a pop culture icon from the 90s, Bobby McFerrin (of "Don't Worry Be Happy" fame) doing a musical demonstration of a pentatonic scale. A pentatonic scale is a musical scale with 5 pitches per octave. Mr. McFerrin taught the audience one such scale and amazingly, the audience of scientific minds performed like a melodic chorus. He went on to say that no matter where he is or the type of audience that is present, the same melodious chorus always happens. (You can see the actual clip at: http://vimeo.com/channels/staffpicks#5732745).

As a former band & choir geek, I couldn't help singing along with the 3 minute clip. Maybe Mr. McFerrin is right. Maybe we are all neurologically wired to search for a common chorus. Though I don't have the scientific proof to back it up, I think we are also neurologically wired to try to resolve our conflicts.

We all have different ways in which we react to conflict. Some are classic avoiders and are always backing away from confrontation. Others tackle conflicts head on and are totally open and direct. I think most of us fall somewhere in between these two extremes. But no matter the reaction to conflict, the fact remains that it is a part of life and we each have to learn how to deal with it.

Mediation is a good tool for resolution because it can be adapted to different personality types. Having an impartial third party to help wade through the secondary issues and get to the heart of the matter is invaluable in a negotiation. All sides to a conflict need to not only hear but listen to their opponent. This is particularly true when there are two parties that react differently to conflict. Without the mediator, an avoider may feel bullied by the more direct opponent. In turn, the more direct person may feel ignored by the avoider. Either way, a skilled mediator can help very different sides take the steps toward permanently resolving their conflicts.

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Top Ten Reasons Doctors Should Use Mediation

10. Resolution of staff conflicts.
09. Higher levels of patient satisfaction.
08. Easy to implement.
07. Creates patient loyalty.
06. Creates malpractice savings.
05. Control overhead costs.
04. Settle patient disputes without court.
03. Better than collections.
02. It's confidential.
01. Overall money savings.

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Confessions of a Shopaholic

Last night I watched the movie Confessions of a Shopaholic. I won't spoil the plot for those who might be interested in seeing the movie one day. But I can tell you that one of the subplots involves a comedic cat and mouse chase between the Shopaholic, Rebecca, and a seething debt collector, Smeath.

As I watched the movie, I couldn't help thinking of some of my recent clients. With the state of the economy, I have seen an increase in credit card companies suing consumers. Mediation is especially effective in this scenario because you generally find two eager parties at the negotiation table. Credit card companies seek to recover their balances and credit card consumers hope to avoid the hot lights of the courtroom and possibly negotiate payment dates.

When parties leave my mediation table, I hope they feel like they have eaten at an all you can eat buffet. At a buffet there are a variety of foods to choose from. Hopefully there will be some of your favorite foods, and some new items that excite your palate. Invariably, there will be some foods that you absolutely hate on the buffet. Though you may be open to trying them the dissonant flavors may lead you reaching for your glass of water. Overall, if it is a good buffet, you walk away satisfied from the meal because you had the opportunity to eat a good portion of the foods that you like.

In mediation and on a buffet, each party may have to take bites of an unsavory concession to gain ultimate satisfaction from a central point. The measure of what is given, is always the choice of the mediating party, not the mediator.

It is not the job of the mediator to take the side that he "perceives" to be weaker. In the case of credit card companies v. consumers, it is easy to be drawn into the hard luck story of a shopaholic. However, mediation is not advocacy! One of the best things about mediation is that it gives all parties an equal bite of the apple. So whether you have a shopaholic or a corporate ceo at the mediation table, the rules remain the same. Impartiality is the hallmark of this business. It is a standard that must always be kept.

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The Need for Connection

“Our connections are best when they are truthful, and our truth is best when we are connected.” ( Boundaries Face to Face, by Dr’s Cloud and Townsend)

About a week ago I was working in my home office. My husband was upstairs working at his desk and I needed to ask him a question. Instead of yelling upstairs or walking upstairs to have face to face conversation, I picked up my Blackberry and texted him. He in turn responded via text message. After a minute of rapid fire texting, I decided to go upstairs and actually talk to my husband face to face. Ladies and gentlemen, I am ashamed to say that I am caught in the matrix of technology. Though our modern devices are designed to keep us connected, in many ways, we seem to be moving further apart.

When I read the quote listed above, I was struck by the wisdom of this simple sentence. As our society moves further away from face to face communication, it becomes more difficult to discern truth from fiction. Transactions that were once completed with a handshake are now completed via email and fax. Misunderstandings and allegations of untruthfulness are not easily cleared up because there is a lack of connection between the parties. Now, more than ever, there is a need for simple, clear, straightforward communication.

Mediation is a great tool to facilitate the reconnection of people on the opposite side of conflicts. In mediation, both sides get to air their grievances. No emails, no faxes, just the spoken word between two interested parties. Also present in the room, is an impartial referee to blow the whistle when the exchange becomes too heated. If an agreement is reached at the end of a session, both parties walk away having resolved their problems. If an agreement cannot be reached, each side can still walk away with a clearer vision of their opponents position on the conflict. How many times has a Tweet or an instant message given you that same satisfaction?

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The Commencement

Welcome to the inaugural entry of Mediation for All Seasons Blog! Thanks for stopping in and checking me out. Hopefully this blog will serve as a source of information concerning mediation.

For those of you that are not familiar with mediation, it is a form of alternative dispute resolution. In a mediation, a neutral person (the mediator) acts as a messenger between different sides of a dispute. Each side can choose to have legal representation or to represent themselves. Unlike a judge's decision, terms and conditions of the settlement are defined by mediating parties.

As a mediator, I believe that there truly is a mediation solution for all seasons. Stay tuned, there is much more to come in the future.

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