Introduction to transformative mediation


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Wednesday, October 9, 2013
8:30am - 12pm

This session will provide a thorough introduction to the major tenets, principles, premises, and practices of Transformative Mediation. Presenters will share the philosophy and theory of Transformative mediation
and engage the group in a discussion around the hallmarks and myths associated with Transformative practice. Attendees will leave the session with a clearer understanding of the Transformative philosophy.

Kristine Paranica
Sarah Prom
Dan Simon

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Introduction to transformative mediation

  1. 1. 1 An Introduction to Transformative Mediation The Association for Conflict Resolution 2013 Annual Conference Minneapolis, MN Speakers: Kristine Paranica, Director, UND Conflict Resolution Center, Grand Forks, ND Sarah Prom, Consultant, UND Conflict Resolution Center Dan Simon, Twin Cities Mediation, St. Paul, MN Agenda: - Understanding the experience of conflict - Exploring the tenets and premises of Transformative Mediation - Principles and Hallmarks - Discussing the Myths of Transformative Mediation UND Conflict Resolution Center Dan Simon’s Twin Cities Mediation
  2. 2. 2 WHY IS CONFLICT HARD? UNDERSTANDING THE EXPERIENCE OF CONFLICT I. Think of a recent conflict that you were involved in. As you replay your conflict experience, describe YOUR behavior, feelings, thoughts, and physical symptoms while in the moment of conflict: (For example, I felt enraged, powerless, tense…) II. Now, describe the OTHER person in the conflict. How did you perceive their behavior? Describe their emotions. Describe their physical symptoms of conflict. (For example, he/she was mean, uncaring, insensitive, unreasonable…)
  3. 3. 3 UNDERSTANDING THE EXPERIENCE OF CONFLICT How does conflict impact you? We all experience conflict in much the same way. It is a universal experience that makes us all feel weak, frustrated, confused, angry, suspicious, defensive, and/or emotional (Bush & Folger, 1994). In conflict, our ability to think clearly, make good decisions, feel confident or capable, and/or feel in control of ourselves is diminished. How does conflict impact the way you view others? Typically, conflict has a destructive impact on our relationships. It can cause us to view others in a negative way. When we feel this way we are least able to see or value another person’s perspective (Bush & Folger, 1994). When we are in conflict, we typically feel…  Unsure of what to do  Incapable of managing our problems  Unaware of the resources we could use to help us  Less able to live out our values  Not in control of our lives!  Least able to access whatever problem solving skills we may have  Least able to listen to, understand, or take the perspective of another person On the other hand, when we are not in conflict and things are going well, we think clearly, feel stronger, confident, and are more capable of handling multiple tasks and managing our lives. When we are not in conflict we typically feel…   Confident of the decisions we make  Capable of managing our problems  In touch with the resources we can use  Able to live out our values  In control of our lives!  Sure of our problem-solving skills  Capable of understanding the perspective of others Here’s the conflict paradox: When you are feeling bad (i.e., hurt, angry, tense, powerless, frustrated) and thinking the other person is a jerk, remember the other person is also feeling bad and thinking you’re a jerk.
  4. 4. 4 You HOMEOSTASIS AND CONFLICT Conflict can take us out of our homeostasis, disrupting our comfort zone and our balance between peace and conflict. Walter Cannon, who was the first person to discover the stress response, believes that it is this strain on the body that causes us to experience stress and come out of our homeostasis. In order to regain our balance or equilibrium we may need to increase positive activities (e.g., sleep, exercise, diet) or decrease negative activities (e.g., reduce stress or stop smoking) in order to get our body back within our predetermined set points. Similar to our physical body’s attempt to stay in homeostasis, we believe that we have a mental and emotional homeostasis. That homeostasis is our ability to maintain a balance between peace and conflict. It’s our comfort zone where we are best able to live out our beliefs and values. So, how does this relate to conflict? When we experience conflict (e.g., a difficult conversation) it upsets our balance. We typically can handle stress within reasonable limits, but similar to our body’s reaction to an injury or illness, conflict can take us out of our homeostasis. Many of us avoid difficult conversations because they could cause conflict and this conflict disrupts our balance. When we are out of our homeostasis we typically feel: uncertain, unsure of what to do, not in control, frustrated, angry, least able to listen and take the perspective of another person, self-absorbed, least able to problem solve and least able to live out our values. Peace Time Triggers Conflict Out of your homeostasis
  5. 5. 5 THE FOUNDATION OF THE TRANSFORMATIVE MEDIATION PROCESS The moment-by-moment activities of the mediator are guided by the mediator’s beliefs about human beings and social interactions. These beliefs are referred to as the mediator’s premises and are the basis for why we practice from a transformative framework. PREMISES OF TRANSFORMATIVE MEDIATION People  People have separate identities; however, they are also inherently connected to others  People are motivated by a moral impulse to act with both strength and compassion Primary human motivation  Desire to balance their autonomy while maintaining their connection to others  Change their interaction with each other from destructive to constructive Social institutions (including conflict resolution processes) should  Facilitate self-fulfillment of individuals  Foster compassionate strength  Support human interaction Highest value to be attained by conflict intervention Shift in the quality or character of human interaction from:  Negative to positive  Adversarial to cooperative  Objectifying to humanizing  Conduct by the parties in mediation that integrates strength of self with responsiveness to another, whatever the outcome Used with permission from the Institute for the Study of Conflict Transformation. Inc.
  6. 6. 6 AN INTRODUCTION TO TRANSFORMATIVE MEDIATION Transformative Mediation became a distinct process for mediation following the writing of The Promise of Mediation (Bush, Folger, 1994; 2004). The theories and ideas written by the authors were moved into mediation practice when the US Postal Service asked the authors to use these ideals to mediate cases for them and to train mediators to use the theory and practice. Mediation as a transformative process is unique because of its five tenets: 1) Mediator focus on party “empowerment” a. Empowerment occurs when the parties grow calmer, clearer, more confident, more organized, more decisive, regaining a sense of strength and able to act and handle the problems they face. During the course of a mediation session there are “requests for empowerment,” which are (usually implicit) indications by one or both of the parties that they desire empowerment. As a mediator, it is important to focus on a party’s empowerment needs first because if he/she does not feel some level of empowerment he/she will never offer genuine recognition. 2) Mediator focus on “recognition” a. Recognition occurs when parties voluntarily choose to become more open, attentive, responsive to the situation of another, thereby increasing the likelihood for them to understand and/or at least be willing to see another perspective. Only after a party has experienced some level of empowerment will he/she be able to give and/or receive recognition. In mediation there are many opportunities for parties to give recognition to one another and the mediator has a variety of techniques with which to respond to those opportunities. The mediator is careful not to force recognition, keeping in mind that without genuine empowerment and recognition it is unlikely that the parties will be able to transform their interaction. 3) The goal of mediation which is to transform the quality of the parties’ interaction from destructive to constructive 4) The mediator’s micro-focus at the table 5) The mediator’s party-centered and non-directive approach During the mediation process, a mediator works with parties in conflict to help them change the quality of their interaction from negative and destructive to positive and constructive, by supporting party efforts at empowerment (gaining clarity and making decisions) and recognition (taking the perspective of the other party). Another unique feature of transformative mediation is that the process can transform the way disputants understand themselves and others by allowing for
  7. 7. 7 meaningful discussion and new understandings of others’ views to the situation and the realization that they can directly handle future disputes of this nature. The promise mediation offers for transforming conflict interaction is real, not because mediators can bring expert knowledge and wisdom to bear, or give advice about how to solve the problems and difficulties the parties face. The promise is read because skilled (and wise) mediators can support the parties’ own work, create a space for that work to go on, and, most importantly, stay out of the parties’ way. Transformative mediators will allow and trust the parties to find their own way through the conflict, and more importantly, find themselves and each other, discovering and revealing the strength and compassion within themselves. Pepperdine Dispute Resolution Law Journal, Changing the Quality of Conflict Interaction: The Principles and Practice of Transformative Mediation. Bush, Pope (2002).
  8. 8. 8 THE PRINCIPLES OF TRANSFORMATIVE MEDIATION The premises or beliefs that underlie transformative mediation are expressed, in the context of mediation, through a mediator’s attitudes and actions as he or she facilitates the parties’ conversation. If the mediator believes in these premises and uses them to guide his or her behavior during the mediation, they become principles of the practice of transformative mediation and result in a mediator’s ability to:  Be comfortable with conflict, including strong emotion and the negative pattern of interaction between parties.  Respect parties’ choices, including choices about participation in mediation, even if they are choices the mediator would not personally make in a similar situation.  Be comfortable with a limited understanding of the parties’ conflict.  Respect the parties, even if their actions, appearance, language, and attitudes seem completely different from those of the mediator.  Be patient with the parties and the process of their interaction.  Focus on the moment-by-moment events in the parties’ interaction.  Attend to empowerment and recognition opportunities.  Choose interventions (and non-interventions) based upon opportunities for party empowerment and recognition.  Relinquish problem solving and control of the process. Used with permission from the Institute for the Study of Conflict Transformation. Inc.
  9. 9. 9 TRANSFORMATIVE MEDIATION’S PREMISES ABOUT PEOPLE AND THEIR CAPABILITIES 1. A person’s reality is unique to that person and based upon his/her life experiences 2. People have inherent needs both for advancement of self and connection with others. 3. People are capable of making decisions for themselves. 4. People are capable of looking beyond themselves. What are situations that challenge these premises? How might your belief in these premises influence your actions as a mediator?
  10. 10. 10 HALLMARKS: USER FRIENDLY GUIDE TO THE PRINCIPLES Each of the ten hallmarks describe, in part, what the principles of a transformative mediator "look like", and why it is important to carry these attitudes and beliefs into practice. 1) "The Opening Statement says it All": Describing the mediator's role and objectives in terms based on Empowerment and Recognition. 2) "It's Ultimately the Parties' Choice": Leaving the responsibility for outcome with the parties. 3) "The Parties know Best": Consciously refusing to be judgmental about the parties' views and decisions. 4) "The Parties have what it Takes": Taking an optimistic view of parties' competence and motives. 5) "There are Facts in the Feelings": Allowing and being responsive to parties' expression of emotions. 6) "Clarity emerges from Confusion": Allowing for and exploring parties' uncertainty. 7) "The Action is in the Room": Remaining focused on the here and now of the conflict interaction. 8) "Discussing the Past has Value to the Present": Being responsive to parties' statements about past events. 9) "Conflict Can Be a Long-Term Affair": Viewing an intervention as one point in a larger sequence of conflict interaction. 10)"Small Steps Count": Feeling a sense of success when Empowerment and Recognition occur, even in small degrees. Folger, J.P. & Bush, R.A.B. (1996). Transformative mediation and third party intervention: Ten hallmarks of a transformative approach to practice. Mediation Quarterly, 13(4) 263-27
  11. 11. 11 DEVELOPING A TRANSFORMATIVE FRAMEWORK “Purpose Drives Practice” Attend: Identifying Transformative Opportunities  Focus on the here and now of the conflict interaction  Listen and respond to individual comments/contributions parties are making. Recognize Opportunities for Empowerment and Recognition  Focus on any comment parties make, which offers an opportunity to work towards empowerment or recognition.  Be mindful of common signpost events that often mark opportunities for empowerment or recognition at predictable phases of a mediation. Monitor: Avoid Focusing Only on the Problem After identifying opportunities for empowerment or recognition, a mediator needs to check any instincts that could undermine a transformative response.  Avoid shaping parties’ comments/contributions into one solvable problem  Avoid focusing exclusively on tangible issues  Avoid directing the parties toward a settlement Respond: Enacting a Transformative Response Respond to opportunities with comments that encourage or allow disputants to:  Gain clarity and make self-determined choices.  Consider, acknowledge, or respond to the situation of the other party. Responding to opportunities for empowerment and recognition entails: 1. Awareness: Acknowledging the opportunity by interjecting at the time the mediator sees the opening for exploring empowerment or recognition 2. Inviting Elaboration: Ask parties to expand on the statement just made. If it is an opportunity for recognition, what is the point that the party wants to have recognized by the other? If it is an opportunity for empowerment, what is the source of confusion, uncertainty, or lack of clarity? Responding to the elaboration in ways that encourage recognition or empowerment can help the parties begin to do this on their own during the mediation. Folger, J.P. (1996). A Transformative approach to mediation: Skills for practice. Presentation at the University of North Dakota, Grand Forks, ND.
  13. 13. 13 UNCOVERING MISCONCEPTIONS OF TRANSFORMATIVE PRACTICE (The following segments are taken from Myths and Misconceptions about the Transformative Orientation By Dorothy J. Della Noce, R. A. Baruch Bush & Joseph P. Folger, Designing Mediation (2001 – ISCT)) Myth #1: Disputes do not get resolved. Within the transformative framework, conflicts do indeed “get resolved” - but they get resolved by the parties rather than by the mediator. The mediator assists the parties by maintaining a focus on (1) the process by which the parties define and achieve resolution, and (2) a broad conception of what “resolution” can be. Myth #2: It’s only for cases where the parties “have a relationship.” Some people assume that transformative mediation is appropriate only in those cases where the parties have or want to continue a relationship. This interpretation misunderstands the framework. Within this framework, every human interaction is a “relationship” - a process of interacting and relating - that can be conducted in a negative and destructive fashion or in a positive and constructive fashion. Therefore, in any situation where the quality of the interaction matters to the parties, and where the quality of the interaction will have an impact on other dimensions of the outcome (including whether agreement is reached and the quality of the agreement reached), interventions that help shift the interaction from negative to positive are of fundamental value. The interaction between an insurance adjuster and claimant is as vulnerable to destructive or productive influences as that of two neighbors or a divorcing couple. Conflict is essentially about gaining clarity about decisions and choices (empowerment) in light of the experience of the other (recognition) in whatever setting it occurs. Myth #3: The mediators don’t do anything. Mediators from the transformative orientation are not directive. However, they are proactive. That is, they are actively engaged with the parties in conversation, listening intently for cues that offer opportunities to work with empowerment and recognition, highlighting those opportunities for the parties, and constantly inviting and encouraging the parties to engage in a constructive dialogue, to consider new information and alternative points of view, to gain clarity, to deliberate or “think out loud,” and to make decisions for themselves.
  14. 14. 14 Myth #4: All the mediators do is ask, “How do you feel about that?” The mediator’s primary task is to “follow the parties:” maintaining a micro- focus on their moment-to-moment conversation to identify and highlight opportunities for empowerment and recognition. Probing for further clarification of feelings or attitudes is just one of many possible responses a mediator might make in working with the parties, and may be appropriate if the mediator is truly following the parties vs. digging for deep meaning. Mediators working within the transformative framework are skilled at reading the unfolding context, a context that is continuously created as the parties’ interact. Without such sensitivity to where the parties are, mediators cannot support where the parties want to head with their conflict. Myth #5: There’s no structure or order to the process. The mediator does not impose a highly-structured process upon the parties when working from the transformative orientation. Imposing process structure has an (often unacknowledged) influence on the parties’ conflict. However, this does not mean that the process lacks order and structure. Order and structure emerge from the conversations of the mediator and the parties, from moment to moment. The mediator does not have to impose a structure on the parties; parties are capable of structuring and ordering their conversations as they need to. The mediator helps the parties determine how they want to structure their interaction by focusing on empowerment and recognition. Myth #6: A mediator can combine theoretical frameworks, or shift strategically between frameworks. Mediators (and others) sometimes ask whether it is possible to combine the transformative and problem solving frameworks, to “do both” at the same time, or to shift strategically from one framework to another in the course of a mediation. Such combinations and/or strategic shifts are not possible for a number of reasons. First, the two theoretical frameworks are based upon deeply-held beliefs about conflict and its resolution that are fundamentally incompatible. That is, one cannot hold both sets of beliefs and goals at the same time, or shift between them in a matter of moments. In addition, the mediator practices that are characteristic of each theoretical framework are incompatible. For example, a mediator cannot simultaneously operate with a micro-focus on interaction and a macro-focus on outcome, nor can a mediator simultaneously support autonomous party decision-making and substitute the mediator’s judgment for that of the parties.
  15. 15. 15 One theoretical framework is inevitably favored over another by each mediator or mediation program, depending upon the goals and values of the mediator and the program in which the mediator works. Myth #7: Transformative mediation imposes a set of values on the parties while an interest-based/problem solving model does not. The Promise of Mediation clarified that all forms of mediation practice are based on world views – ways of thinking about what productive conflict is, what human beings are capable of and what third parties should do as they intervene. Transformative mediation is based on a set of relational values. Problem solving is based on a set of values that stem from interest based negotiation approaches to conflict. These values are clearly different. Because problem solving has been such a predominant view of conflict, it is often easy to think that this approach to practice is value-free, not built on any particular world view. This is clearly not the case. To choose any approach to practice is to choose a set of values. We inevitably assume that the values we are choosing are the ones that mediation should be built upon.