"I do not want more of the same." We have heard this from families in conflict as they hear from the local court to try mediation. We have also heard it from those seeking to mediate handling matters pro se (without lawyers).
It seems like we are experiencing a shift in how families seek justice. Let us consider Deborah Hensler's words as she addressed a legal audience at the Association of American Law Schools during the centennial Annual Meeting on Jan 7, 2000. She said, "Pay attention to the evolution of ADR in the courts and the romantic ideology about empowering people and giving power to people to settle their disputes…I think we ought to challenge courts to make good on those promises made to disputants - especially as courts order people to use these procedures on the claims these procedures are doing something better for them (Welsh, 30)."
Powerful and impactful, almost prophetic words to the legal community twenty years ago, and today, people are seeking out alternatives. However, there is something different in the voices reaching out. A conviction to not engage in an adversarial route or be led by warriors of "zealous advocacy." Disinterest in filling out affidavits which no one reads but are grossly overrated and outrageously expensive. Voices ask for mediators focused on people and carry the baton for the legacy they want to leave. Voices hearing the troubling destruction (in adversarial routes) in the lives of their friends or family disputes - a desire for change is stirring in the atmosphere.
Current mediation options are sparse in this niche, yet the public is looking for it. Traditional (facilitative) Mediation and Transformative Mediation are the primary options available. When it comes to courts' preference to settle, parties and those interested in leading mediation should understand how these two differentiate.
While The Katallasso Group takes Transformative Mediation to the next level (which you can read on our FAQ pages), we invite you to consider the following to make the best decision for yourself.
COMPARATIVE ANALYSIS OF FACILITATIVE & TRANSFORMATIVE MEDIATION
The United States judiciary landscape has expanded from court-driven processes into alternative dispute resolution (ADR) processes since the 1960s. The most increased ADR has been the field of mediation. Mediation emerged in a "purist" fashion, meaning that parties could exercise free will while maintaining control over their chosen outcome over a dispute (Guthrie, 145). The field of mediation has changed legal professionals, and court-connected programs have gained influence (Welsh, 1). Mediation environments have unique differences, and today's consumers do not know the differences between facilitative and transformative mediation models.
With the court's preference towards achieving settlements, parties seeking mediation for disputes can evaluate the different models to prevent "buyer's remorse (Welsh, 3)." Today, the purist view of mediation remains in smaller pockets of the market called Transformative Mediation. Facilitative Mediation has taken center stage, with legal professionals adopting mediation into their repertoire of practices available for clients. Each model has unique attributes related to philosophy, process, self-determination, the mediator’s role, party participation, and outcomes.
Distinctions in Philosophy and Practice
Mediation models vary both in philosophy and practice. Both models adhere to general definitions of mediation, such as this local Minnesota judicial definition that translates across the United States and beyond with a "forum in which a neutral third party facilitates communication between parties to promote resolution of a matter (Minnesota Court Rules, “General Rules of Practice, Rule 114.02 Definition, 2022)." Based on the reviewed literature, models philosophically differ based on their primary focus within the definition. Facilitative Mediation philosophically focuses on "settlements" while transformative mediation focuses on "people”. Therefore, each unique focus influences the model's process and practice within mediation.
Facilitative Mediation focuses on party settlement, and the mediator controls the process. The mediator leads parties through each disputed item typically in a more analytical manner. Mediation procedures and techniques include opening statements, looking at "standards of fairness" based on local laws, examination of issues, assistance in reframing or clarifying positions, and frequently having outside professionals' input to move the parties forward (McKnight and Erickson, 9). Law schools or other similar institutions frequently offer mediation training, and they tend to carry the legal tones and settlement focus into facilitative mediation. The majority of mediators in this category of mediation are, indeed, lawyers (Minnesota ADR, Qualified Neutral Roster, 2022).
Transformative Mediation is philosophically committed to the self-determination of disputing parties and therefore focused on "people”. This philosophy expands control of process and outcomes to the hands of parties seeking transformation of the quality of the conflict towards positive (Folger, Bush, and Della Noce, 31). Party empowerment to self-actualize, recognize the needs of others, and reimagine possibilities occurs as positive empowerment shifts become highlighted through the mediator's presence (Folger, Milne, and Salem, 59). This model recognizes conflict as an opportunity to move from destructive to constructive communication, ultimately transforming interpersonal relationships (Bush, Hershman, Thaler, and Vitkovich, 155).
Role of the Mediator
The mediator’s neutral role appears to have distinct variations between mediation models. Neutrality is so significant to the mediator's function that the terms 'mediator' and 'neutral' are interchangeable (Astor, 222). Yet, the term neutrality seems not agreeable since its earliest literature (related to U.S. Courts). Jay Folberg states, "Ultimate authority in mediation belongs to the parties themselves (Folberg, 8).” Yet how a mediator understands party self-determination and the intersections of their neutral role are widely different.
To consider a neutral role, local jurisdiction and codes of conduct sometimes offer definitions to self-determination, which seem to complicate the function of neutrality (Anderson, 69). The training of a neutral is also a factor in understanding their role, with many mediators left to self-interpretation. This may leave tension between the professed commitment to self-determination and the imposition of an overriding ethical code that remains unresolved by the mediation movement (Greatbatch and Dingwall, 615). Most literature affirms broad agreement in regards to mediator definition. They assert mediator roles do not offer legal advice in any way (Brown, 279). There is also agreement that mediators may not impose their judgment on parties (Minnesota Court Rules, “General Rules of Practice, Rule 114.02 Definition, 2022). Consistency in mediator role definition seems to stop there as studies offer newer insight into how mediators lean towards their professional mannerisms before mediation. At this juncture, studies provide essential information for consumers to consider.
An exciting study by Leonard Riskin affirms, in his extensive research, that facilitative mediators tend to project their "standard philosophical map" or professional bias into their role. The "standard philosophical map" of lawyers includes legal analysis, and adversarial tends to significantly overreach, through the neutral position, into privatized mediation settings. Riskin’s comparison of social workers, clergy, and therapeutic professionals suggests their professional ability to support the emotional and interpersonal relationship matters in a mediation just as they would in their professional environments (Guthrie, 149). When researching the experiences of disputing parties, studies show when a mediator announces their primary profession in the initial meeting, there is an immediate impact on how the parties will relate to each other and with the mediator (Riskin, 127).
No matter the type of model preferred, court-approved mediators are ethically required to follow local jurisdictional guidelines or codes of conduct regarding self-determination (free will). One example is Minnesota's Rule 114 mediation definition and Code of Ethics, requiring mediators to recognize self-determination so parties can voluntarily settle without coercion. The Code of Ethics advisory committee provides additional comments in which mediators may offer opinions on strengths and weaknesses of the positions and raise issues that lead parties towards settlement (Minnesota General Rules of Practice for the District Courts, Rule 114 Alternative Dispute Resolution Appendix Mediation Rule I. Self-Determination (with amendments effective July 1, 2021). Neutrality is a fundamental component of mediation; this offers an example of the inconsistency between definitions and the Code of Ethics. Most research points towards this inconsistency; as mediators then lean towards the models, they become trained to define neutrality, which is unexplained mainly within their training (Astor, 226).
Evaluation is in arbitration, evaluative mediation, or judicial host settlement conferences. The Minnesota example offers an open door for an evaluative opinion or nature to be an accepted part of the mediator's function. Unfortunately, this rubs against the definition of self-determination or free will, and parties play a less central role in a once-party-driven process. In facilitative mediation, we tend to see
"the responsibility of the party for a final decision on settlement, but they
cast in the role of consumers, largely limited to selecting from settlement
options developed by their attorneys. Therefore, self-determination is being
replaced with concepts reflective of the norms/traditional practices of
lawyers or judges and courts' orientation to efficiency and case closure
through a settlement (Welsh, 17)."
Finally, Facilitative Mediators understand their role to conduct mediation from a "settlement" focused lens. They control the mediation process. Facilitation occurs as they reframe the party's statements, validate each party's interests, and steer parties into discussing options and win-win bargaining (Elkind, June 16, 2016) . Jurisdictions offering court-sponsored programs tend to expand the facilitative neutral's role to include raising issues, giving opinions on the strengths or weaknesses of positions, and drafting proposals (Minnesota General Rules of Practice for the District Courts, Mediation Rule I. Self-Determination, Advisory Task Force Comments 1 1997 (with amendments effective July 1, 2021). Studies show this to be a fairly common practice among facilitative mediators. They see it their duty to inform litigants, neutrally, of the relevant facts that affect their cases but suggest distinguishing that from making judgments about the merits of their positions (Elkind, June 16, 2016).
Transformative Mediators understand their role to "restore to individuals a sense of their value, strength, and capacity to handle life's problems in a safe environment (Bush and Folger, 81 and Moyal, 99)." With party self-determination at the center of their focus, the mediator takes on a role facilitating active listening, reflection, and check-ins as questions surface (Folger, Milne, and Salem. 66). They learn not to insert their opinions and uphold party empowerment while providing a safe environment for conversation. The mediator has clarity in their role to support the parties determining how the process will advance, whom to include, what the parties wish to discuss, and how they would like that organized as an agreement (Folger, Bush, and Della Noce, 31).
Party Participation in Process and Outcomes
With courts showing a preference for mediation over litigation, it will suspend proceedings to allow parties to participate in determining their outcomes actively (Baitar, Buysse, Brondeel, De Mol, and Rober, 62). Generally speaking, studies reveal that mediation offers parties a more significant enhancement of outcomes (Bailey and McCarty, 335). Yet, a growing body of literature confronts facilitative mediation issues related to actual party participation and their ability to exercise free will.
Dissatisfaction in participation and outcomes are one of the most extensive critiques of facilitative mediation. Thirty to forty percent of consumers expressed not feeling understood or mediators failing to address the relationship problems that brought them to mediation (Ali, 4). Leonard L. Riskin observed a high level of legal professionals trained as mediators offering predictions of court dispositions, attempting to persuade parties to accept the mediator's assessment, proposing position-based compromise agreements, and directly assessing strengths and weaknesses (Welsh, 8 and Riskin, 127). These behaviors ultimately limited party participation and frequently mimicked a more adversarial environment similar to the courtroom. With facilitative mediation overrun mainly by lawyers, mediation environments pull party participation in the wrong direction for party-based outcomes (Baitar, Buysse, Brondeel, Mol, and Rober, 64). Welsh suggests that these techniques are highly concerning, especially in privatized settings, as mediation conducted in this manner no longer upholds a party-driven process (Welsh, 8).
With Facilitative Mediation as the forerunning model, studies show hope that mediators can correct their role to ensure mediation remains party driven. Two unrelated studies provided positive insight that empathetic and authentic facilitative mediators could guide better outcomes for parties when they learn to understand party self-determination (Baitar, Buysse, Brondeel, Mol, and Rober, 71). The second study reinforced this position of improved outcomes when mediators were also sensitive to the emotional reactions of the conflicting parties (Gale, Mowery, Herrman, and Hollett, 389).
Disputing parties actively decide both process and outcomes in Transformative Mediation. Parties directly participate in the communication, craft, handpick, and control substantive norms to guide their decision-making and personally create the options for settlement with total control of the outcome (Welsh, 17). Transformative Mediation has been studied and known for being highly flexible for any disputed matter, offering parties a participation level that they fully design (Zumeta, Feb. 22, 2022). After a series of Transformative Mediations, parties could positively appreciate and recognize their [interpersonal] connections, review progress and accomplishments, address lingering issues and concerns, decide on next steps, and consider strategies and tools for future potential conflicts (Bush, Hershman, Thaler, and Vitkovich, 159).
While assessing critiques in party participation and outcomes related to Transformative Mediation, opposing literature offers concern for parties referencing it as "too idealistic" or "too loose" to make it to an outcome successfully. This author could not find any studies confirming this to be the feedback from parties.
Conclusion
Mediation markets itself to the general public as the faster and cheaper way for parties to resolve their disputes (Bryan, 211). Not every situation will benefit in a mediation environment, but a majority will (Forester, 41). Those that seek mediation should have the ability to “tell the story” in a way that is important to them (Sullivan, 58). Levels of party participation, the definition of self-differentiation, and mediator roles are vastly different when comparing the transformative and facilitative mediation models.
Literature is much more available in Facilitative Mediation as the legal community becomes trained to expand its services to clients. Studies offer validation that how a mediator learns to understand and function in their role primarily impacts a private mediation setting for parties. More specifically, research studies show that mediating parties have a greater chance of a positive outcome when neutrals include empowerment and supportive social skills (Wall Jr., Stark, and Standifer, 391).
In conclusion, studies offer insight that mediation models and mediators will naturally veer in the direction of a mediator's profession unless otherwise properly educated in neutrality. A growing literature acknowledges the success of mediation training confronting the matter of neutrality and equipping mediators to protect parties' self-determination. As consumers seek mediation services to identify a "right fit" mediator, studies and literature suggest that the primary attribute to consider is a mediator's training, their understanding of their role as a neutral, and their willingness to protect party self-determination.
Written by Lisa Welter, March 2022. Lisa is currently studying for her Doctorate of Ministry in Transformational Leadership at Bethel University, St. Paul, Minnesota. She and Jen co-lead The Katallasso Group and offer Transformative Family Mediation training to those seeking to develop exceptional mediation skills for high-conflict families. They agree with Transformative Mediation practices and weave in restorative approaches by preparing neutrals for toxic/embedded relational patterns. They also equip neutrals with techniques to balance external influencers that can affect power/authority, in privatized settings, to protect party self-determination.
The mediator creates a restorative atmosphere (including substantive norms of parties) that changes the quality of the conflict and invites self-determination.
Intentionality to move from destructive to constructive conversations (Bush and Folger, 53).
People/Relationship focus to reach a settlement
Honors the ethical vision of self-determination by using circles to facilitate communication between parties.
BIBLIOGRAPHY
Ali, Natasha Mavash "Enhancing Transformative Mediation to Address Family Conflict," (Ph.D. diss., New Mexico State University, Las Cruces, New Mexico, 2010). ProQuest Dissertations & Theses Global.
Anderson, Dorcas Q. "Mediation Ethics: From Theory to Practice." Conflict Resolution Quarterly 39, no. 1 (2021): 67-74.
Astor, Hilary. "Mediator Neutrality: Making Sense of Sense of Theory and Practice." Social & Legal Studies 16, no. 2 (2007): 221-39.
Bailey, Jo Daugherty, and Dawn McCarty. "Assessing Empowerment in Divorce Mediation." Negotiation Journal 25, no. 3 (2009): 327-336.
Baitar, Rachid, Ann Buysse, Ruben Brondeel, Jan De Mol, and Peter Rober. "Post-Divorce Wellbeing in Flanders: Facilitative Professionals and Quality of Arrangements Matter." Journal of Family Studies 18, no. 1 (2012): 62-75.
Baitar, Rachid, Ann Buysse, Ruben Brondeel, Jan de Mol, and Peter Rober. "Toward High-Quality Divorce Agreements: The Influence of Facilitative Professionals." Negotiation Journal 28, no. 4 (2012): 453-73.
Brown, Carole J. “Facilitative Mediation: The Classic Approach Retains its Appeal.” Pepperdine Dispute Resolution Law Journal 4, no. 2 (2004): 279-469.
Bryan, Penelope Eileen. "Reclaiming Professionalism: The Lawyer's Role in Divorce Mediation." Family Law Quarterly 28, no. 2 (1994): 177-222.
Bush, Robert A. Baruch and Joseph P. Folger. The Promise of Mediation. 2. Aufl. ed. Hoboken: Jossey-Bass, 2004.
Bush, Robert A. Baruch, Lisa Hershman, Robert Thaler, and Christena Vitkovich. "Supporting Family Strength: The Use of Transformative Mediation in a PINS Mediation Clinic." Family Court Review 47, no. 1 (2009): 148-66.
Elkind, Thomas I. "To be Effective Facilitators, Mediators Must Know Judicial Process." Massachusetts Lawyers Weekly (blog) 2016 Dolan Media Newswires, June 16, 2016, http://www.masslawyersweekly.com
Erickson, H.T. “Who will Arbitrate this Case? Problems with Nonparties.” Alternatives to the High Cost of Litigation 23 no.4 (2005): 75-76.
Folberg, Jay. “A Mediation Overview: History and Dimensions of Practice.” Mediation Quarterly 1, no. 3 (1983): 8-10.
Folberg, Jay, Ann L. Milne, and Peter Salem. Divorce and Family Mediation: Models, Techniques, and Applications. New York: Guilford Publications, 2004.
Folger, Joseph P., Robert A. Baruch Bush, and Dorothy J. Della Noce. Transformative Mediation: A Sourcebook Resources for Conflict Intervention Practitioners and Programs. Reston, VA: Association for Conflict Resolution, 2010.
Forester, John. "'Activist' Mediation." Planning 79, no. 9 (2013): 41-43.
Gale, J., Mowery, R. L., Herrman, M. S., & Hollett, N. L. “Considering Effective Divorce Mediation: Three Potential Factors.” Conflict Resolution Quarterly 19 no.4, (2002): 389–420.
Greatbatch, David, and Robert Dingwall. "Selective Facilitation: Some Preliminary Observations on a Strategy used by Divorce Mediators." Law & Society Review 23, no. 4 (1989): 613-41.
Guthrie, Chris. "The Lawyer's Philosophical Map and the Disputant's Perceptual Map: Impediments to Facilitative Mediation and Lawyering." Harvard Negotiation Law Review 6 (April 1, 2001): 145-319.
McKnight, Marilyn, and Stephen Erickson. Mediating Divorce: A Step by Step Manual. San Francisco, CA: Jossey-Bass, 1999.
Minnesota Court Rules. “General Rules of Practice, Rule 114.02 Definition,” Minnesota Legislature: Office of the Revisor of Statutes (2022). https://www.revisor.mn.gov/court_rules/gp/id/114/.
Minnesota General Rules of Practice for the District Courts. Rule 114 Alternative Dispute Resolution Appendix Mediation Rule I. Self-Determination (with amendments effective July 1, 2021). Obtained March 2022. https://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Court%20Rules/GRP-Tit-II.pdf.
Moyal, Shira. “Scheinman Scholars: Strategies and Techniques of Shakespeare’s Creative Mediators,” Dispute Resolution Journal 70 no. 3 (2015): 99.
Riskin, Leonard L. “Replacing the Mediator Orientation Grids, Again: Proposing a ‘New Grid System.’” Alternatives to the High Cost of Litigation 23 no.8 (2005): 127–32.
Sullivan, Mark E. "Family Law Mediation: The Master Checklist." American Journal of Family Law 30, no. 1 (2016): 58-62.
Wall, James A., Jr., John B. Stark, and Rhetta L. Standifer. "Mediation: A Current Review and Theory Development." The Journal of Conflict Resolution 45, no. 3 (2001): 370-391.
Welsh, N. "The Thinning Vision of Self-Determination in Court Connected Mediation: The Inevitable Price of Institutionalization?" Harvard Negotiation Law Review 6 (2001): 1-96.
Zumeta, Zena. “Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation.”Last modified February 22, 2022. https://www.mediate.com/articles/zumeta.cfm.