Arnold W. Zeman’s blog
I have quickly read through the executive summary–the document appears to me to be quite comprehensive, particularly in its analysis of issues for union members who are considering mediation. In at least one respect, however, it errs by implicitly assuming that all approaches to mediation share the characteristic of moving through five stages:
Mediation progresses through five stages: mediator’s introduction, opening statements by the parties themselves, discussion, exploring options and, where possible, moving towards reaching agreement. The parties are in control of any agreement and the process is facilitated by the mediator (Bleiman, 2008, p.1).
Leaving aside whether movement through these five stages is linear or not, this description of mediation as a five-stage process does not apply to the transformative model. In transformative mediation, not only the subject matter and the possible agreement are controlled by the clients but so is the process as well, not only what they wish to talk about but also how they wish to talk about it. This is an important point for transformative practitioners–we believe that self-determination of the clients has to be vigilantly guarded by the mediator’s awareness of any directive impulses on her part, however subtle or not so subtle. Control of the process by the mediator is one such directive move–it may circumscribe client self-determination by turning the parties away from the conversation that they wish to have. So while a settlement may be reached in a five-stage process that is facilitated by the mediator, it may often emerge from the top-down (parties’ following the mediator) with possible impacts on party satisfaction and on the durability of the agreement that has been reached. The transformative approach is one where the mediator tries at all times to follow not direct the clients wherever they want to go in their conversation and however they want to go there. These are their decisions alone–again, they have the right to make decisions even those they may come to regret later. True, they may not come to a settlement but we believe that there are other outcomes to mediation that are just as valuable to the parties (my emphasis) as a settlement. Seen this way, a mediator who facilitates a settlement-driven process can be said to have a substantial interest in how the conflict is dealt with that attenuates her impartiality.
For more information on the non-stage structure of transformative mediation, see Della Noce, Dorothy J. Mediation as a transformative process–Insights on structure and movement. In Joseph P. Folger, & Robert A. Baruch Bush (Eds.). (2001). Designing mediation–Approaches to training and practice within a transformative framework. New York, NY: Institute for the Study of Conflict Transformation Inc., 71-95.
These Principles and Guidelines are an adaptation of the original drafted by the Collaborative Law Association in Santa Clara County, California. For the most current version, please go to www.Nocourt.org....By Managing Editor