In
their
1994 publication, The Promise of Mediation, Robert A. Baruch
Bush and Joseph Folger explicitly outlined a framework for the
practice of transformative mediation. Although practitioners had
already touched on the possibilities of mediation in this realm,
Baruch Bush and Folger's work defined transformative
mediation, in contrast to the dominant orientation of problem-solving
mediation. Problem-solving mediation is aimed at resolving
specific disputes between parties and coming up with a mutually
acceptable solution to the immediate, short-term problem. In
problem-solving mediation, the mediator normally plays a very active
role in guiding the process.
Instead,
Bush and Folger proposed that mediation can effect much deeper changes
in people and their interpersonal relationships, beyond just remedying
a short-term problem. They proposed a way of practicing mediation that
seeks to address deeper levels of social life. In the preface of their
seminal work, they stated that, "mediation's greatest value lies
in its potential not only to find solutions to people's problems but
to change people themselves for the better, in the very midst of
conflict."[1] By employing a specific perspective on mediation
practice as well as specific techniques, they believe mediation
possesses the power to change how people behave not only toward their
adversary in a particular conflict, but also in their day-to-day lives
thereafter. Mediation, in their opinion, can transform individuals.
For mediators who adhere to the framework of transformative mediation,
achieving this type of long-term change is more important than solving
a specific problem between parties.
The
transformative approach to mediation does not seek resolution of the
immediate problem, but rather, seeks the empowerment and mutual
recognition of the parties involved. Empowerment, according to
Bush and Folger, means enabling the parties to define their own issues
and to seek solutions on their own. Recognition means enabling
the parties to see and understand the other person's point of view --
to understand how they define the problem and why they seek the
solution that they do. (Seeing and understanding, it should be noted,
do not constitute agreement with those views.) Often, empowerment and
recognition pave the way for a mutually agreeable settlement, but that
is only a secondary effect.
The
primary goal of transformative mediation is to foster the parties'
empowerment and recognition, enabling them to approach their current
problem, as well as later problems, with a stronger, more open view.
It should be noted as well that achieving empowerment and recognition
is assessed independently of any particular outcome of the
mediation.[2] This approach, according to Bush and Folger, avoids the
problem of mediator directiveness, which so often occurs in
problem-solving mediation. Transformative mediation instead puts
responsibility for all outcomes squarely on the disputants.
Empowerment
is used by Bush and Folger in a way that differs from common usage. It
does not mean power-balancing or redistribution, but rather,
increasing the skills of both sides to make better decisions
for themselves (see empowerment
debate for more on common usage). Specifically, Bush and Folger define
the term "empowerment" as: "The restoration to
individuals of a sense of their own value and strength and their own
capacity to handle life's problems."[3] They explain that through
empowerment, disputants gain "greater clarity about their goals,
resources, options, and preferences" and that they use this
information to make their own "clear and deliberate
decisions."[4]
Developing
clarity in these areas will strengthen parties' own ability to resolve
the conflict in which they are involved. This type of empowerment may
be called skill-based empowerment, meaning that parties are
empowered by improving their own conflict-resolution skills. Parties
are empowered when they learn how to listen, communicate, analyze
issues, evaluate alternatives, and make decisions more effectively
than they could before.[5]
Empowerment
occurs in transformative mediation when the mediator watches for
opportunities to increase the parties' clarity about or skills in
these areas. The transformative mediator aims to foster parties'
clarity and skills in a way that allows the parties to maintain
control of both the process and the substance of the discussions.
Unlike problem-solving mediators, transformative mediators are careful
to take a secondary role, rather than a leading role in the process.
It is said that they "follow the parties" around, and let
the parties take the process where they want it to go.
By
recognition, Bush and Folger mean considering the perspective,
views, and experiences of the other. Recognition, they say,
"means the evocation in individuals of acknowledgment and empathy
for the situation and problems of others"[6] (see empathic
listening). As with empowerment, the effect of recognition in
transformative mediation is meant to extend beyond a particular
conflict and into the parties' everyday lives. In the long term,
achieving recognition in transformative mediation should help expand
parties' ability and willingness to relate to others in a more
understanding and considerate way.[7]
Recognition
is something one gives, not just something one gets. It is a process
of acknowledging one's adversary as a human being with his or her own
legitimate situation and concerns. According to Bush and Folger,
recognition must be based on empowerment in that parties must be
confident in their freedom to make decisions regarding the course of
the dispute.[8] Given the importance of empowerment, transformative
mediators allow the parties to choose how much they want to recognize
the views of the opponent. It is possible that recognition will lead
to complete reconciliation
between disputants. On the other hand, parties may recognize each
other to a much lesser extent, and may be willing to suspend
self-interest only momentarily, or not at all, in order to recognize
the other.
There
are many differences between transformative and problem-solving
mediation. The only similarity is that each uses a third party to
assist the disputing parties to deal with the dispute in a new way.
That "new way," however, differs considerably from one
process to the other, as can be seen in Figure 1, below.
Note:
These are idealized descriptions. Actual mediators will hold these
ideas and follow these actions to a lesser or a greater degree.
|
Copied
(with permission) from "Transformative
Approaches to Conflict," by Heidi Burgess and Guy
Burgess with Tanya Glaser and Mariya Yevsyukova. |
Problem-solving
or "settlement-oriented" mediation, which is by far the
dominant approach in the field today, is just what the name implies;
it is focused on solving a problem by obtaining a settlement. The
settlement-oriented mediator usually explains that this is the purpose
at the outset, and defines a process that will assist the parties to
work toward that goal. All of the mediator's actions are designed to
facilitate settlement. Emotions that might escalate anger and thus
prevent a settlement are controlled. Issues that are nonnegotiable are
diverted, while parties are encouraged to focus on negotiable
interests. Mediators tend to discourage a discussion of the past as
that often involves blame, which can make progress more difficult.
Rather, parties are encouraged to focus on what they want in the
future, and develop ways in which their interests can be met
simultaneously (see joint/assisted
reframing). Sometimes the settlement-oriented mediator acts more
as an arbitrator than a transformative mediator, proposing a solution
and working hard to "sell" it to the parties (see arbitration).
Settlement-oriented mediators often try to keep the parties moving
forward, encouraging them to move from one stage to the next as
quickly as possible and using a deadline
as an inducement to come to an agreement.
Transformative
mediators work very differently. They explain in the opening statement
that mediation provides a forum for the parties to talk about their
problem with a neutral third party present. It is explained that this
can be helpful for clarifying the nature of the problem from both
parties' points of view. It also helps disputants develop a range of
options for dealing with the situation. This process should help the
clients make better choices about how to proceed, and may help them
better understand the views of the other party. This understanding may
enable the clients to reach a mutually satisfactory solution, or it
may suggest other approaches for handling the situation. Thus
settlement is presented as one, but clearly not the only possible,
successful outcome of mediation.
Usually,
transformative mediators will then work with the parties to develop
goals, ground
rules, and a process they want to use. Mediators will make
suggestions about process and ask questions (usually to encourage
either empowerment or recognition of the other), but they will not
direct the conversation, nor will they suggest options for settlement.
In transformative mediation, this is the parties' job. Bush and Folger
describe the mediator's job as "following the parties
around." The mediator follows the parties' leads and then helps
them clarify for themselves and the other, what their real concerns
are and how they want to see them addressed. Sometimes, recognition by
the other is all that is really needed to reach mutual satisfaction.
Other times, parties must go further and negotiate interests. Interest-based
negotiation is, of course, allowed in a transformative process,
but usually shares center stage with the discussion of feelings and
relationship issues.
The
definition of success also differs in the two kinds of mediation.
Typically, settlement-oriented mediation is not considered successful
unless a settlement is reached. Transformative mediation, however, is
successful if one or both parties becomes empowered to better handle
their own situation or the parties better recognize the concerns and
issues of the other side. Very often, the empowerment and recognition
gained by the parties allow them to develop a mutually agreeable
outcome. However, according to Bush and Folger, the opposite often
does not occur. The settlement-oriented mediation process does not
lead to empowerment and recognition, because it tends to ignore
relationship issues in favor of narrower, more concrete interests.
In
a 1996 follow-up article to their book The Promise of Mediation,
Bush and Folger presented a list of 10 hallmarks of
transformative mediation that distinguish its practice from other
forms of third-party intervention processes. One may summarize these
hallmarks as follows:[9]
Transformative
mediation is a relatively new concept, though many mediators had been
acting in this way for a long time, but did not have a name for their
style until Bush and Folger defined transformative mediation as a
concept. Because empowerment and recognition are phenomena that happen
to people, the transformative approach is usually thought to be useful
in interpersonal conflicts such as family conflicts, conflicts between
neighbors, and conflicts between co-workers. However, Bush and Folger
argue in the Promise of Mediation that the approach is just
as applicable in other kinds of settings. For example, legal mediation
has been criticized for being overly directive compared to other forms
of mediation. Bush and Folger argue that legal mediation would benefit
greatly from the adoption of a transformative approach, leaving
directive intervention to the courts and judges. The same is true,
they argue, for business mediation.
Mediation
with organizations, rather than individuals, becomes more complicated.
Organizations are always represented by individuals, but the changes
and learning that those individuals experience are hard to relate back
to the people they represent. Problems can develop when the mediation
process transforms representatives, but not their constituents, who
are not at the table (see stakeholder
representatives). Methods must be found to extend this
transformation to constituencies, if the effect of transformative
mediation is to have widespread significance at the organizational,
public policy, or societal level.
The
same is true for inter-group and international situations. Improving
relationships and transformation of the conflicts to ones that are
less destructive is critical in these situations, but transforming the
leaders or the group representatives is not enough. Somehow, this
transformation must be brought to the grassroots level before conflict
transformation or resolution can be achieved.
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