Transformative mediation has become acknowledged and accepted as a well-established orientation of practice in Maryland. At the end of a two-year study sponsored by the Maryland Program for Mediator Excellence (MPME), transformative mediation was identified as one of the four officially recognized orientations of mediation practice in the state: facilitative, inclusive, transformative, and analytical. Still questions and misconceptions remain. Some people say that “transformative mediation is about transforming people”, implying that the practice isn’t appropriate for many court cases. Others worry that the “transformative mediation process takes too long for Day of Trial settings.” Let’s examine these perceptions.
First, the focus of transformative mediation is not about transforming people, it is about transforming the quality of the conflict interactions between or among participants in conflict. By doing so, transformative mediators support the participants as they choose what they would like to address and how they wish to talk about it. As transformative mediators, we have no intention of changing or transforming people’s lives, nor do we believe that is even possible in the brief period we might spend with them.
But in supporting participants as they reach clarity, discover options, and hear themselves and others in a way that opens to new information and understanding, we assist as they recover the capacity to make informed decisions in their own best interest. They can then respond to others in a way that might have seemed impossible a few minutes before. The quality of their interaction is transformed, from one that is more negative, destructive, demonizing and alienating to one that is more positive, constructive, humanizing and connecting. They are able, once again, to choose whatever solutions are best for them to move forward.
While our mediator focus is upon the quality of the participants’ interaction, rather than specific agreement, we find that our participants are more likely to reach an agreement in mediation than not. Two Community Mediation Centers (CMC) in Maryland practice transformative mediation exclusively: Calvert County Community Mediation Center and the St. Mary’s County Community Mediation Center. Our Centers’ agreement rates for Day of Trial cases are higher than the statewide average, and our satisfaction rates, as determined by comments on participant evaluation sheets, are also high. Out of 157 participants surveyed in 2011, the average satisfaction rate was 4.5 on a scale of 1 to 5, with 5 being the highest score (strongly agree). This also includes participants that did not come to an agreement, but felt they came to a better understanding of their own perspective as well as the other participant’s point of view.
But does transformative mediation take too long? That simply hasn’t been our experience. Our Day of Trial cases average one hour. Extremely difficult conversations, like those had in Peace Order cases, may take longer, but this is not the norm. We often handle multiple cases during a single court docket. There are times when we are asked to take cases that the judges have previously heard. The judges know these cases will be difficult, and there is very little that they can do to find a lasting solution. These repeat cases are not really about the auto repairs, the shared driveway, the broken fence, the daycare contract or the loud noise. The problem is the crisis in the interaction between the disputants. They are not able to talk to one another so they call the police or file a suit. When given the opportunity to sit down with the other in mediation, transformative mediators support the participants’ conversation in ways that enable them to regain their own strength and clarity to make decisions and their ability to respond to one another in a way that allows them to move forward.
Some people feel that transformative mediation’s lack of apparent structure precludes ordered progress. Actually, transformative mediation does have structure in which participants are introduced to the context of the mediation, explore the situation and possible options, deliberate and make informed decisions. Transformative mediators support participants as they exercise self-determination in how, and in what order they wish to work through this process. Our experience would suggest that this takes no longer than in other mediation frameworks.
Other misperceptions persist. Some suggest that “transformative mediation may be effective for a conflict involving relationships but not for business, financial or contractual issues.” The fact is every conflict involves some type of relational interaction whether it is an employer/employee, merchant/consumer, landlord/tenant or contractor/consumer. We find that it’s rarely or never “just about the money.” It is most always about the crisis in interaction: a miscommunication, a loss of trust, a perception of unfairness or feeling of being disrespected.
Our partnership with the District Court ADR Office has been mutually beneficial. It provides invaluable experience and a tangible sense of accomplishment for the Center’s mediators. In addition to our work in the District Courts, a number of transformative mediators have been accepted on the Circuit Court’s roster to provide Children in Need of Assistance (CINA) mediation. We also provide parenting plan and property distribution mediations. The St. Mary’s County Community Mediation Center has established a pre-release mediation program for inmates at the local detention center and the Calvert Community Mediation Center is soon to follow. Calvert CMC instituted a mediation program between Sherriff’s Deputies and citizen complainants, the first of its kind in Maryland, with the St. Mary’s CMC planning to follow. One can’t argue with the results. Over the past eleven years, we have proven transformative mediation to be effective in and out of the courts across a wide range of conflict interactions.
Published in the Journal of Dispute Resolution. This Article (and video) examine the strengths and weaknesses of ODR (online dispute resolution) from a psychological perspective. https://www.youtube.com/watch?v=XsMLwyfFvco&t=3s Jean's article makes five...By Jean Sternlight