September 2014
ADR Tip of the Month
Transformative Mediation for Everything?
- Whether or not a mediator is committed to the transformative approach, all mediators can look for opportunities to support "empowerment" and "recognition" shifts.
- "Empowerment" in this context means the parties taking greater responsibility for their decisions and gaining clarity about the situation and about their ability to affect it - it tends to arise when parties are allowed to make decisions about how the mediation is conducted, as well as what topics are discussed, even if those topics don't seem relevant to the legal case.
- "Recognition" in this context means parties gaining a greater understanding of each other's perspective, which tends to bring with it less demonization and better decisions about how to interact with or negotiate with the other side.
- Mediators and lawyers should consider a pure transformative approach, which maximizes the potential for parties to make better decisions for themselves and each other - the US Postal Service REDRESS Program research showed 90% satisfaction rate of parties on both sides, as well as an 80% case closure rate.
- The transformative approach applies not only to cases where there will be an ongoing relationship, but also to cases that are purely a negotiation. It allows for the maximum amount of helpful information to flow between the parties, leading to better decisions about the negotiation, and settlements that parties are happier with.
This practice tip is written by Dan Simon and is drawn from the MSBA ADR Section's September 9, 2014 CLE by Sharon Press.