Pictures of transformative practice


Published on

Wednesday, October 9, 2013
2pm - 5:30pm

This session is the partner session to "Introduction to Transformative Mediation." This session is an
extension of the introduction where participants will learn and see skills, interventions, and strategies of a
Transformative Mediator and explore the conceptual frameworks of Empowerment and Recognition.
Through large and small group discussion, live demo and video clips, participants will leave the session
with a clear picture of the practice of Transformative Mediation.

Kristine Paranica
Sarah Prom
Dan Simon

Published in: Education
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  • Thank you, presenters for your work here. After a several workshops on Transformative practice at the 2010 Annual conference, it was time to schedule another. Since the model has only grown in recent years, I'll bet you had a number of attendees eager to learn more. I hope you were able to counter the prevalent myth held by many clients' lawyers that they need an evaluative mediator to serve the client best. My TM practice is working well (even in Court cases!) and my clients are often surprised at their successes.
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Pictures of transformative practice

  1. 1. Pictures of 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: - Synopsis of morning session - Strategies of the Transformative Mediator with video analysis - When does the Transformative Mediator intervene? - Live demonstration UND Conflict Resolution Center Dan Simon’s Twin Cities Mediation
  2. 2. STRATEGIES FOR TRANSFORMATIVE MEDIATORS The following strategies are driven by the premises and principles of transformative mediation and guide the interventions of transformative mediators. Strategies are patterns of behavior that demonstrate the “how” of transformative mediation. Orienting the parties to having a “constructive conversation” Describing mediation, as an opportunity to have a constructive conversation is an important metaphor for Transformative mediators. Describing mediation as a conversation that is relational (takes more than one person); empowering (assumes that through their conversation they will become clearer about their issues and goals); it orients to the possibility of interpersonal recognition (through dialogue); and it expands the definition of success beyond agreement (to include greater understanding of each other, choices to be made, and consequences). Supportive mediator moves:  Using the metaphor of having a conversation to describe mediation, the mediator’s role, or the parties’ role:  Defining mediation as a conversation between the parties  Describing the conversation as a: discussion, talk, chat, etc…  Identifying constructive possibilities for having a conversation, such as:  Discussing differences  Increasing clarity and understanding  Seeing choices  Making decisions Example: “My role as a mediator is to assist you in having a discussion. I will help facilitate your conversation and help you discuss your differences. I’m not going to say who is right or wrong, nor will I say what I think is best for you. You are the decision makers in this process. My role is to help you understand your goals, clarify your concerns and needs, and discuss what matters most to both of you.” Mediator moves that interfere:  Using words or phrases that disempower the parties by positioning the mediator as an authority figure or expert (e.g., referring to mediation as a “hearing” and using related legal terms, or referring to the legal, therapeutic, or substantive expertise of the mediator).  Using words or phrases that suggest that the outcome of the mediation is more important than the conversation itself (e.g., negotiation and settlement, problem-solving, problem and solution).
  3. 3. Orienting the parties to their own capacity: Parties have the capacity to exert power, make decisions, and/or achieve certain goals in the mediation. The mediator supports empowerment by using language that encourages the parties’ ability to act and decide. Their decision-making ability is the focus of transformative mediation, which is in stark contrast with other mediation language that signals that the mediator has the central role in the process. Supportive mediator moves:  Using the second person subject, singular and plural (you)  Using second person possessive adjectives (your)  Using parties’ names in the subject position of a sentence, thereby “constructing” them as people capable of action  Downgrading mediator’s decision-making (e.g., emphasizing your role as “assisting” or “helping” them to decide)  “Following” the parties  “Getting out of the parties way (e.g., allowing self to be interrupted and corrected) Example: Mediator: “So, Paul, it sounds like you are unsure about the visitation schedule. What were your thoughts about how it should look…? Paul: “I guess I want to figure out where I can pick up the kids and when I can have them. I want to make a decision on the holidays.” Mediator: “You mentioned a couple of things you would like to accomplish, where would you like to start?” Mediator moves that interfere:  Using terms that focus the parties to the decision-making of the mediator, especially frequent use of the first person (I, me, or my)  Acting in ways that assert mediator power (e.g., interrupting the parties or making choices for the parties) Orienting the parties to each other This strategy is related to recognition (i.e., building interpersonal understanding). Recognition is always subject to empowerment and although the mediator can lay foundation to this strategy, it should never be forced. Supportive mediator moves:  Using the metaphor of having a constructive conversation (it takes two!)  Making references to “the other” (by name, or “both of you,” or “each of you”)  Allowing parties to speak of and for each other (that is, to step into the other’s shoes)  Marking opportunities for non-speaking party to speak, if they choose
  4. 4.  Allowing significant segments of uninterrupted party-to-party talk (mediator sits back and intentionally remains silent)  “Following” party-to-party discussions through inclusive summaries Example: Mediator: “Emily, it sounds as though you have heard a lot of new information today.” Emily: “Yes, I did not know that Greg wasn’t blaming me for the divorce.” Greg: “I still don’t totally understand why we are getting a divorce, but I don’t blame you.” Mediator: “It sounds like you still have some questions, but you seem clear that this was not Emily’s fault.” Mediator moves that interfere:  Focusing party attention on the mediator and away from each other  Focusing party attention on “the problem” and away from each other  Discouraging party-to-party talk:  Ground rules  Interruptions  Use of caucus  Ignoring a party who is trying to engage  Non-verbal behaviors that “cut off” a party  Stopping party-to-party talk when it happens:  Turn shifts (changing who may speak next)  Topic shifts (changing the subject)  Interruptions  Specific sanctions (e.g., “speak for yourself” or “speak to me”) Opening the parties’ verbal conflict Transformative Mediators are comfortable in the presence of conflict and respect the parties’ choices about how to engage in conflict. For transformative mediators, it is important that the parties have the opportunity to talk with and hear each other. It is very likely that this “talk” will sound oppositional and even emotional. Yet the conflict is functional. As the conflict unfolds, the parties can learn new information, present themselves in new ways, create new understandings and make informed decisions. To support these possibilities, the mediator “follows” that unfolding conversation, listening for places where choices can be highlighted or possibilities for building greater interpersonal understanding emerge. This often means following the “heat” of a conversation and pursuing points of contention, rather than highlighting the places of agreement or common ground, or taking steps to minimize verbal conflict. Both empowerment and recognition shifts happen in the midst of conflict.
  5. 5. Supportive mediator moves:  Using minimal encouragers at party pauses to encourage a party to continue speaking (“Mm-hmm,” “Go on,” “Okay”)  Using key word encouragers, keying in on a term parties’ use that seems to carry “heat” (“Support, as in…?”)  Using open reflections (reflections that “follow” party content / emotions)  Using reflections and summaries to mark points of disagreement  “Following” conflict storylines and allowing multiple storylines to develop  Asking questions that invite elaboration Example: Bob: “Um, the main issue is that I think we’re both very stressed and scared about money, the financial aspect.” Pam: “And then I think, time is also an issue for him, because of Doreen.” Bob: “Don’t bring Doreen into this! That’s not an issue for me!” Mediator: “So Bob, you are uncomfortable with Doreen being a part of this conversation.” Mediator moves that interfere:  Preventing verbal conflict in advance through ground rules that:  Limit how parties communicate and how long a party may talk  Limit what they may talk about  Terminating verbal conflict through:  Turn shifts (changing the speaker)  Topic shifts (changing the subject)  Interruptions  Failing to respond to conflict talk and strong emotions Orienting the parties to the decision-making process Mediation is an ongoing process of decision-making—whether to stay, who should talk, what to say, what not to say, whether to listen, how to listen, how to talk, etc. Orienting the parties to these decisions is empowering. Mediators highlight all decisions, including process and content, and call them to the attention of the parties, not force decisions from the parties. They avoid making any decision that could be made by the parties. Supportive mediator moves:  Highlighting available decisions  Offering suggestions only tentatively (be careful with this!) Example: Mediator: “Okay. So it looks like you have a list, is this where you want to start…?” Larry: “It’s a list of what we need to split up, …” Mediator: “Okay…” Larry: … “uh, I guess it is what we need to do with the kids…um, I don’t know what you want to do, I mean, we… don’t have that many things, like
  6. 6. the house and, stuff…Um, I don’t know what you want to do first.” Mediator: “You can start wherever. This is your time, so you can discuss things in whatever order you choose. You mentioned two major areas, the children, of course, and the division of…” Eileen: “…property and our assets.” Larry: “Yep.” Mediator: “So wherever you might want to start is up to the two of you.” Mediator moves that interfere:  Making decisions for the parties (e.g., “The mediator controls the process, and the parties control outcome”)  Taking decisions away from the parties  Limiting the choices available for discussion  Favoring certain decisions over others
  7. 7. WHEN TO INTERVENE IN PARTIES’ CONFLICT Many new mediators are not sure when to intervene during mediation. They may feel uncomfortable because they are not sure what to say or may hold back because they feel as though they are interrupting the parties. It is important to remember, however, that you are there to facilitate their conversation. Parties expect you to intervene, and as a transformative mediator you will need to interject in order to help lift opportunities for empowerment and recognition. Not all opportunities can be responded to, but even brief segments of conversation are rich with openings for empowerment and recognition. A mediator makes choices about why and when to intervene based on: Flow of the Conversation  If parties get stuck in a pattern of weakness and self-absorption the mediation can “stall” or settle into a noticeably slow period. Opportunities for empowerment and recognition are there, but they may not be apparent to the parties. This could be an appropriate time to intervene. Opening up their interactions by reflecting back to the parties may be helpful. The mediator may also simply recognize the impasse and ask the parties where they wish to go from here. o For example: I can see this is very difficult for both of you. Bob, you have talked about what a shock it was to find out that Michelle wanted a divorce and how hard it has been to make decisions when you are still not sure if you even want the divorce. Michelle, you have said that the marriage has been over for a long time and that you feel Bob was just choosing to ignore the problems in your relationship. Where would you like to go from here? What would be most helpful to you?  If parties get into a pattern of volleying back and forth the mediation is probably moving too quickly and they may not notice or have time to recognize opportunities for empowerment and recognition. Slowing down their interaction by summarizing what has transpired may be helpful. It may also be appropriate to use reflection and stay with one party for a while to help build empowerment. o For example: You both have put a lot on the table thus far. Would it be helpful if I summarized what you have discussed? There seems to be a major disagreement about what to do with splitting up some of your personal property. While you agree that it should be divided, how and what seem to be the focus right now. You also have discussed how you would like to co-parent your children, how to
  8. 8. spilt up holidays, and what you would like to do with your dog. Is there anything else?  When parties talk “with” rather than “at” each other they don’t need as much intervention. Sometimes, summarizing at the end of that interaction is all you will need to do. Parties do not need as much intervention if “shifts are happening.” Invitations from the Parties  Parties may signal to the mediator that they want help with their interaction, by: o Turning to look at the mediator o Asking the mediator directly for help in some way o Asking indirectly for help, e.g., “Do I have to keep doing this?” o Shifting from second person to third person; from “talking to” to “talking about” the other party Timing  Some degree of empowerment comes before an offer of recognition. Consider whether the parties are interacting with relative increases in personal empowerment before highlighting recognition opportunities, which often don’t require anything from the mediator.  Conversation at the mediation table has rhythms, periods of intensity followed by lulls in the conversation. These lulls or pauses in the conversation can provide opportunities to intervene without interrupting the parties’ flow. The intense periods offer opportunities to address emotion, difficulty in talking, or observations about the interaction.
  9. 9. BASIC REPERTOIRE OF MEDIATOR RESPONSES Knowing when to intervene during mediation is important; however, knowing what to say and how to say it may do more to raise opportunities for empowerment and recognition. The following mediator tools will give you examples of how to intervene in parties’ conflict: - Reflection is when the mediator says back to the speaker what the mediator believes the speaker has just expressed, using language that is close to the speaker’s own. A good reflection captures both the substance and the emotional tone of what the speaker has said, without parroting. Examples: “So for you this is about…” “What you seem to be saying is…” “It sounds as though…” - Summarizing is when the mediator condenses a series of things the parties have said, or a series of things that have happened, into essential points. A good summary is inclusive—nothing is strategically “dropped out.” Examples: “So what you would like to talk about today is…” “There are a number of things you are disagreeing about, including…” “To summarize what you’ve both talked about so far…” - Checking- In is a way the mediator asks questions that help parties make decisions about the mediation process, the content being discussed and their engagement. The mediator notes a decision-point and asks parties if it is one they want to consider and/or act upon. Examples: “So where do you think the discussion should go at this point?” “Are you ready to move on to ________that you mentions or do you want to stay with this part of the discussion awhile longer?” - Staying/Backing Out is when the mediator withdraws from direct involvement in the conversation, remains silent, and allows the parties to talk directly to each other without interruption
  10. 10. The directive impulse leads mediators to overlook or ignore opportunities for empowerment and recognition STAYING TRANSFORMATIVE: AVOIDING THE DIRECTIVE IMPULSE A transformative mediator pays close attention to the parties’ conversation in order to find opportunities for empowerment and recognition. This is known as maintaining a microfocus. Before intervening in the parties’ discussion, a mediator needs to monitor his or her own motivations for intervening and suppress urges to be directive. Being directive is not bad; however, it can take the focus off what the parties want to talk about and re-direct it into what the mediator thinks they should talk about. A directive impulse leads a mediator to try to “get” the parties somewhere. It involves:  substituting his/her judgment for the judgments of the parties  shaping the parties’ comments into “solvable” problems  focusing exclusively on tangible issues  shaping the outcome so that it is acceptable to the mediator  directing the parties toward, or away from, a particular outcome  controlling the process of discussion  taking decisions out of the parties’ hands, overtly or covertly  telling the parties how they should think, feel and behave  focusing on a settlement to the dispute How: do I get them to see this won’t work? can I get them focused again? do I regain control of the process? do I empower him or her? can I get them to understand? can I get them to agree?
  11. 11. COMMON DIRECTIVE IMPULSES One important way to monitor intention is to recognize directive impulses that commonly “bubble up.” Noticing these impulses allows a mediator to counter them and maintain his/her original transformative, supportive intentions. During mediation, it is not uncommon to think: How do I get them to…? Things are getting out of control! I shouldn’t just sit here… We’re getting nowhere! We’re going in circles! We’re running out of time! I can’t let him / her do that! I know just what will work… If I can get them to agree on… That’ll never work! I’ve heard enough of that…