Transforming the Adversarial Ethic

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Before sharing with you important
information about transformative
mediation, first let me share
with you that I left the practice of litigation
21 years ago to found a firm built on
mediation and the promotion of peaceful,
cost-effective, and sustainable resolutions
though quality dialogue. It isn’t only my
business, it’s my mission and the mission
of our team at my firm, Baltimore
Mediation. We believe in the transformative
power of quality dialogue. We believe
in the restorative power of a conversation
driven by participants courageous
enough to have a face-to-face candid discussion
with the assistance of a skilled
mediator. Mediation creates a safe space,
supported by confidentiality—via state
and federal court rules throughout the
country and in one state, Maryland, by
statute—which ensures that nothing
in the conversation can be used for or
against any party in an adversarial context.
Mediation can be a powerful process
for those who have the courage to request
or demand it. The trouble is, when faced
with legal problems or conundrums or
challenges, many if not most businesses
do not know that mediation exists as a
viable option because the information is
not shared with them by their litigation
or corporate counsel. If it is raised as an
option by counsel, it is often then dismissed
by counsel as “not viable” or “not
for this case.” Or, if the mediation option
is posed by the client, legal counsel often
advises against it as “too risky.” Too risky
for whom? And why not for this case?

The irony is that each year more and
more senior litigators, on the precipice of
retirement from the practice of law and
no longer buoyed at the prospect of more
court battles, flood into our mediation
training courses, tired and beat up from the years of the adversarial ethic, eager
to be more peaceful. We say, welcome,
welcome, welcome! The world eagerly
awaits you.

The Power to Transform through Dialogue

I hope to inspire you about transformative
mediation. It is the kind of
mediation we have championed for
over two decades and practiced in all
kinds of venues across the country and
overseas. It has worked for large land disputes,
riparian rights disputes, zoning
disputes, and construction and building
disputes, and it has worked for every
variety of breach of contract in the business
and every employment arena you
can think of, including securities disagreements,
partnership conflict and
dissolutions, discrimination complaints,
and the “we don’t get along or like each
other anymore” workplace conflicts. It
has also been the process of choice for
family situations, from amicable marital
separations to fiery complex divorces
with child support and custody battles
and real and personal property division
with complicated tax and estate issues, to
international kidnapping treaties, to postdivorce
college education conflicts, and
to prickly alimony modifications. And
it has been pioneered in thorny or tragic
marital difficulties involving affairs, lack
of sexual intimacy, addictions, Internet
pornography, bankruptcy, children
with special needs, and sensitive issues
around caring for elder parents. Transformative
mediation is used to work through
all the complexities of family dynamics
that regularly manifest themselves in
closely held and family-operated businesses.
And transformative mediation is
also an option of choice for those working
hard to stay together as a family, as
business partners, as executive leadership
teams.

Yes, it’s been a glorious 21 years, and
our work has taken us across the United
States and to four continents. We have
mediated on small family farms on the
Eastern Shore and in Tidewater, in state
and federal agencies in the midwestern
plains, the high mesas of the Hopi
Indian Reservation, and all the way to
the West Coast and back again for Fortune
100 and 500 companies.

You might ask how a mediation practice
can be so broad, and I want to share
with you our secret ingredient: dialogue.
We purposefully and intentionally choose
to be transformative mediators to assist
people with quality dialogue and to help
them engage in a constructive way. Faceto-
face dialogue. And it turns out, this is
what people and organizations seem to
want most.

Transformative vs. Directive Mediation

What is transformative mediation and
why does it matter that you know about
it? Well, it matters because your clients
come to you as a trusted advisor. Trusted
advisors need to be on the cutting edge of
what is available for their clients. It matters
because clients have choices in the
marketplace for the type of mediator they
are seeking. And you have choices for
the type of mediator you might consider
becoming. Yes, there are different types
of mediators trained and guided by their
particular world views or particular conflict
theories. There are other mediators
who have no mediation conflict theory
training at all but who focus instead on
subject matter expertise (which, by the
way, is not required by statute or court
rule of any mediator in the United States
except for child custody and divorce
mediation, and in one state, bankruptcy
and medical malpractice mediation). But
all mediators are required to have mediation
skills training. So you may have
thought anyone with negotiation or settlement
experience can mediate. Ah,
you now know otherwise. Even if you
knew this already, you may not have
been aware that there are different conflict
theories that inform every mediation
training and every mediator practitioner,
whether the mediator is explicit about
it or not. For those mediators trained
in getting agreements, unfortunately, in
practice, many are doing whatever they
want or believe they can do to “get an
agreement,” which can include all sorts
of tactics, some of which are ethically
questionable (such as “arm twisting”)
under the Model Standards of Conduct
for Mediators, promulgated by the ABA
and other groups in 2005.

Essentially, there are two main
approaches for a mediator: to be directive or to be transformative. Stated another
way, a mediator has an orientation to his
or her practice, whether spoken or silent,
whether conscious or unconscious. Taking
a directive approach, the mediator’s goal
is always to get the parties to settle. This
approach, whether the mediator’s formal
training was explicit or not about the theory
on which it is based, is rooted in power
theory, rights theory, or needs and interests
theory, or some combination of these.
On the other hand, taking a transformative
approach, the mediator’s goal is always to
facilitate quality dialogue, with agreements
as a natural by-product. Transformative
mediation training is rooted in relational
conflict theory. Perhaps the approaches
sound similar: after all they are both used
to help people resolve their differences.
They are not similar. They are radically
different. Transformative mediators do not
have agreement as their goal. Do they value
agreements? You bet—but they value faceto-
face quality dialogue more.

Indeed, the research in the field of conflict
resolution supports the statement
that participants in a transformative
mediation are more likely to agree
when a mediator takes a transformative
approach. More importantly, the
research says participants are more
likely to create sustainable agreements,
on their own terms, due largely
to a mediator committed to fostering
their quality interaction and committed
to resisting the urge to direct them,
whether by force or by reason, into
agreement terms acceptable to the mediator.
The most recent research, perhaps
the most extensive and gold standard to
date in its scientific rigor, reports that
mediators who are directive also produce
clients who are less confident about their choices and their own abilities.
Directive mediators actually
disempower clients.
I could stop here because that is the
sum and total, the essence of the difference
between the mediation approaches—directive
or transformative. But the real pièce
de résistance of the differences lies in the
how-to of the transformative practice itself.
So let’s take a glimpse of what a transformative
mediation process looks like and
how you might consider it as a valuable
process for your clients.
The Transformative Mediation Process:
A Closer Look
The Goal Is Not Settlement, but Settlement
Is a Likely By-Product
Let’s imagine an attorney, you, advising
your clients who have a dispute to enter
into a transformative mediation process
where the goal is not settlement. Huh?,
you might say. Why would I do that?
While it’s true that the transformative
mediator’s goal is not settlement or agreement,
settlement may be the clients’ goal.
If so, there is probably no better process
for fostering a qualitative settlement than
a transformative mediation because terms
of agreement are the result of quality dialogue—
candid exchange of information
and hard questions posed with the ability
to be thoughtful and discerning. Parties
shift to thinking on their own because
they are more informed.
However, not all parties have settlement
as their goal, and not all parties have only
settlement as their goal. Consider a family
business where the father, president
and CEO, and the lead sales manager son
do not see eye to eye on the same strategic
trajectory for increasing profits. It’s a serious
conflict, but it is not a legal dispute. A
legally binding settlement is not their goal.
For the father and son, you might dismiss
mediation out of hand as not appropriate,
soft. After all, it’s a tough situation, but
it’s not a legal dispute. You take the view
of, just wait until it ripens, if at all, into
a legal matter. Or say you decide to send
them to a mediator. If it’s a directive-settlement-
oriented mediator, that mediator
is likely to bypass important aspects of
the conflict or dismiss certain topics as
irrelevant or getting in the way of reaching
an agreement.

Now imagine your business clients
who have a difficult partnership they
need to unwind. They have clients,
accounts, and positive standing in
the community. They also have families,
and the breakup is causing tension
between children who essentially grew
up together. Settlement and a lot of other
goals such as family preservation are paramount
for them. You decide to advise
the client to go to mediation. Let’s say
the other side agrees and they go to a
directive-settlement-oriented mediator.
Let’s further say that the mediation was
“successful”; they “got the deal done,”
but they never resolved the handshake
loan from one of their family members
because the mediator declared it was
not a partnership liability and so it was
dropped, or they never discussed what
each would say to their friends about the
other because the mediator viewed this
as irrelevant to the deal. Or, maybe they
were lucky enough to have a mediator
who helped them with a joint statement
to the outside world about their parting
of ways, but what they were really or
equally concerned about was what each
would say to their families and friends
and close business confidants; when this
was raised in the mediation, the mediator
changed the subject because that kind
of discussion was probably emotional or
prickly and likely to run the risk of undoing
a settlement, and so it was therefore
purposefully avoided because it could be
the fly in the ointment.

Directive-settlement-oriented mediators
steer clients away from discussing
what the mediator believes will derail a
deal, especially topics that are emotional
and relationally complicated. Transformative
mediators, on the other hand,
follow the parties’ talk whatever it is
and intervene in ways to foster engagement
on emotionally charged or sensitive
issues knowing that such emotions are
the very energy for potential conflict
transformation.

So you have an idea of the differences
in approaches. Both kinds of mediators
have a desire to help people resolve
issues, but one, the mediator with the
transformative approach, follows the parties
and their needs and what they want
to talk about, which ultimately produces more resolutions that are satisfactory
to both parties, as well as more sustainable.
No wonder there are reports from
clients who were first referred to settlement-
oriented mediators but who later
participated in transformative mediation
that they felt that their arms were
twisted, that they never got to speak
about what was important to them, and
that both parties left unhappy, albeit with
an agreement. It must be why directive
mediators often say, “I know I did a good
job in the mediation when both parties
are unhappy. (Tee he ha ha.)” Not funny.
If you think about it, why would anyone
who cares about the well-being of their
clients advise them to participate in an
approach that dehumanizes them? The
primary reason is that the advisor didn’t
know better or never gave thought to an
orientation to conflict.

What, Exactly, Does the Transformative Mediator Do Differently?

Let’s now look more closely at what a
transformative mediator actually does
that is different.

A transformative mediator is trained
to create a safe forum for open and honest
dialogue, no matter how difficult.
So, for starters, a transformative mediator
spends time with the participants in
face-to-face discussions to allow them to
set the agenda and decide how they wish
to engage. The transformative mediator
follows the participants’ discussion,
punctuating it from time to time with
reflections of what each speaker has said,
using their words, not the mediator’s, to
aid in greater clarity about each person’s
perspective. A transformative mediator
doesn’t lead but allows for and makes
space for each speaker to speak, to be
engaged, to ask questions of the others, to
amend, to edit, to explore, to change their
minds as they become more certain and
confident.

A transformative mediator listens very
carefully and gets out of the way when
the participants are engaged. When the
parties pause in their interaction, a transformative
mediator provides summaries
and recaps of large chunks of conversations
to aid in better understanding the
big picture, identifying barriers, and highlighting
possible ideas and options—both tangible and intangible—that emerged
from the parties through their dialogue.
A transformative mediator assists
the parties in removing the barriers to
understanding and quality interaction
and helps them to consider more fully
options and consequences raised by the
other participants. Transformative mediators
take an optimistic view of people
and their ability. They are unrelenting
in this view. They help participants consider
the “maybe, maybe not.” And they
leave room, space, and time for shifts and
for informed thinking. For those participants
interested in settling disputes, their
settlement terms become more robust
and thought-through, with more traction
and buy-in of the end result. And for
those participants for whom agreement
was never the goal, misunderstandings
are cleared up, ease in interactions is
restored, productivity is energized, and
emotional cohesion is often created.

Whether you are contemplating retirement
yourself or simply doing something
different in your current practice, consider
attending a series of transformative
mediation trainings so that you too can
consider mediating—or negotiating—
from this approach. Consider becoming a
“little m” mediator using transformative
skills in your daily interactions with clients,
family, and strangers.

When Might You Recommend Transformative Mediation to Clients?

Recommending transformative mediation
to your clients would be natural in many
circumstances you are likely to encounter
in your practice. For instance, you might
recommend it if you are in active practice
and have a trust and estate matter
where one or more of the family members
are disagreeable and decisions are
not being made when they need to be,
or where two or more family members
have ongoing tension about a past decision,
or two or more family members just
don’t get along. Or you might recommend
transformative mediation for adult sibling
clients, including spouses, who got along
reasonably well until a piece of property
was left to one family member causing
strife or division between that person
and another family member, as for example,
in the case of a beach or mountain
home bequeathed in equal parts to multiple
adult children such that some want
it and some do not and they are in conflict
about a buyout or how to share the
maintenance costs or split the prime time
between their families and renters.

Remember, a transformative mediator
is trained in fostering quality dialogue.
A really good transformative mediator
knows how to work with multiple parties
in fostering quality dialogue as well. A
likely result of facilitated quality engagement
are terms for agreement that are
tailored and personalized, and that work
for all parties. Another equally important
or perhaps more important outcome is a
reduction in inter-family gossip, which
enables family members to address each
other directly and with greater ease and
confidence, with family holiday meals
and traditions restored—all by-products,
like agreement, of dialogue that allows
for shifts.

Or perhaps you represent the owners of
a closely held business, whether they be
the first or second or third generation, and
the head of the business is aging or failing
in health and the younger owners are facing
a buyout of the senior owner that may
cripple the business financially. Or perhaps
the oldest son in line to take over the
business is not well-suited for managing
or inspiring those in the company, or the
oldest daughter’s husband, the son-in-law,
is now in the business and doing a good
job but the younger son is resentful, and
your job is to advise the owner. Consider
recommending transformative mediation
for the family or for whoever in the family
is willing to participate. There is no
reason to hold up dialogue because of a
power play by one person who declares
they will not come to the table. Dialogue
is powerful between two or more individuals,
and a change in the dynamic of two
can bring a positive impact on the whole.
Possible outcomes are employee/management
relationships that feel genuine
and uncomplicated, a more productive
business, and perhaps a parting of the
younger son, but in an amicable way,
with integrity.

Perhaps you represent a client whose
grown daughter is in the throes of a sad,
now-getting-nasty separation or divorce,
and you learned this in passing when your client casually shared how broken
up he was about it. Consider recommending
that he share the possibility
of transformative mediation with the
separating or divorcing couple. Possible
outcomes are a parting of ways with
dignity and much less cost or (as we’ve
seen) even reconciliation, if so chosen
by the parties.

Perhaps you yourself have complex
decisions you need to make with your
spouse as you age, or with your children,
your business partner, or your law
firm. You too might consider transformative
mediation for yourself. Possible
outcomes are more fully informed decisions
made with intention that will have
longevity and staying power, a meaningful
send-off, a different work schedule
or fewer clients, or a new function as
a relationship-sustainer for current clients.
The possibilities are endless. It’s a
dialogue that provides safety where the
courageous conversation can happen and
where integrity can be strengthened for
all. It is commonplace for transformative
shifts to occur. Shifts occur because
a transformative mediator recognizes
the opportunities the directive mediator
misses or chooses not to see. When shifts
occur, conflict interaction is transformed.
When conflict is transformed, agreements
happen on authentic terms. Our clients
have called this “settlement plus.”

The Two Most Important Things to Know about Transformative Mediation

There are two main and most essential
pieces of information for you to know
as both a consumer representing your
clients and as a mediation participant
yourself. The first is that transformative
mediators trained in and guided
by relational conflict theory essentially
believe that people have what it takes
to be both strong for self and responsive
to others, even in conflict and even as
conflict unfolds as a result of dialogue.
Thus, there is really no downside—only
an upside for choosing transformative
mediation.

Second, it’s counter-egoic, as we say,
for parties to choose to engage with someone
who has harmed them or crossed
them or breached their trust. When
harmed, we want to move away from and
protect ourselves either through stonewalling
or through striking back. That’s
the egoic response. Transformative mediators
understand that. Stated another
way, it is intuitive to dialogue.

A Call to Action

So, this is a call to action for you to consider
your special role as trusted advisor.
Will you have the courage to tell your
clients about the option of choosing and
preparing for an open and honest conversation?
Will you support them? Will you have the same belief in your clients’
capacity that a transformative mediator
has? Or will you use the adversarial ethic,
often cloaked as “advocacy,” as a sword
to sabotage your clients’ chance at quality
interaction with the very person or
people whom they are against? Will you
view mediation as weak and litigation as
strong? Will you view mediation as too
risky because your clients might give up
a right that you wouldn’t give up, or a
right you want to champion? Do you view
mediation as being too powerful, even
dangerous to your practice, because it is
so highly effective in resolving disputes
efficiently by negating the need for costly
and protracted discovery and delay?

Your clients need your intuitive support.
Shutting down dialogue and
foreclosing open sharing of information
usually causes greater harm to people
than the underlying conflict or dispute
itself in terms of cost, lost business,
exacerbated circumstances, magnified
suspicion, escalated fear and dislike, and
hurt feelings hardened into rage and vengeance.
Your clients need your support
to prevent these outcomes. And the folks
on the other side of the conflict need your
support too. People rarely need to be
separated from each other in mediation
unless they ask to be given some time to
think something through privately, and no one needs to be forced or manipulated
or arm-twisted into a compromise or
agreement. Compromises or mutual terms
of agreement will naturally emerge from
the parties from a qualitative conversation.
So, the adage “You know it’s a good
mediation when both sides are unhappy”
is the antithesis of transformative work.
There is no reason for anyone to have to
participate in a process set up with a goal
of both parties being unhappy.

In a transformative mediation process,
disputes, especially those ensconced in
litigation and adversarial tactics, usually
shift and difficult situations are made better.
The transformative mediator assists
with clarifying barriers, sharpening the
commonalities as well as the differences,
and helping the participants exchange
useful information and explore possibilities,
both pros and cons, proactively but
without pressure to agree or to compromise.
A good transformative mediator
knows that forcing agreement is not necessary.
Participants often already have
plenty of external and internal pressure
to resolve conflicts—they don’t need
more from the mediator. Practice bears
out and research supports that authentic
compromise and personalized terms of
agreement are natural by-products of honest
and open discussions and thoughtful
evaluation. A transformative mediator
knows how to foster quality interactions
and outcomes. A transformative mediator
is not a deal broker but rather a communication
broker. In a transformative
mediation, participants are not separated
from each other by a mediator or by
their lawyers, not, at least, for very long,
because a transformative mediator knows
the power of face-to-face honest discussions
in a safe space that enable lawyers
and their clients to feel confident and
comfortable. Parties are rarely eclipsed
by their lawyers in what they want to talk
about in a transformative mediation.

While the participants may choose to
meet separately to think more clearly or
to talk between themselves or with outside
persons, a transformative mediator
raises the process option of the participants
coming back together in face-to-face
dialogue where the real breakthroughs
happen. The more difficult the issue or
the personalities, whether in litigation
or not, the more the situation calls for
the transformative approach. The ability
to speak and have a good chance at
being understood by the other in the faceto-
face interaction is the transformative
aspect of mediation. This is what most
businessmen and businesswomen, managers
and employees alike, and most
family members young and old yearn for
when faced with a lawsuit or difficult
business situation. But the legal approach
often stifles the process by not supporting
it. A lawyer espousing the adversarial
ethic often advises parties not to speak
candidly, which contributes to muzzling
the voices of those who are, have been,
and will be most impacted by the conflict
and its “resolution.” This advice,
given as an “advocate,” makes conflict
worse. When this advice is also given in a
mediation, such attorneys clearly do not
understand the confidentiality standards
or the power of transformative mediation.

Restoring Good Relations: You Can Be the Catalyst

Fortunately, however, for some clients,
there are many enlightened attorneys
who understand the power of the mediation
process, know the difference
between directive mediators and transformative
mediators, and know that their
clients will likely return for legal advice
on other matters for the very reason
that they felt supported by the attorney
in a mediation process that empowers
them, rather than strips them of power.
Transformative mediation is about the
breakthroughs necessary for effective
and satisfying negotiation and outcomes
for all who participate. And attorneys
who recommend and are supportive
of a particular type of mediation—that
which elicits and reflects rather than that
which directs—are also beneficiaries,
as reported in the most recent mediation
research that found clients who
experience such an approach hold their
advisors and counsel in higher regard.
That’s a sweet pay-back for a commitment
to be counter-egoic. And yes, transformative
mediation definitely saves time and
money and is far less expensive than protracted
litigation.

Clients need the support of their counsel
to engage directly with each other safely. I believe that individuals, no matter
how unreasonable or obstreperous or
crazy one or the other side thinks they
are, can arrive at solutions that work for
them, for both of them, for all of them,
when given a chance to talk face-to-face
openly, protected by the safety of the confidentiality
of the mediation process and
by the transformative approach, which is
not focused on forcing people to agree but
is focused on quality interaction. I know
this. I have felt it, witnessed it, and been
an instrument for it thousands of times
in my own mediation practice. I know
that transformative mediation is a powerful
force, one that brings authenticity to
human relationships.

And as for agreements, just to say it
again—they are natural by-products.
Reflecting back on some of the
examples noted, in our often highly
transactional American society, it is
understandable, albeit misguided, that
many attorneys, especially litigation
counsel, do not support mediation. If
you, too, espouse an adversarial ethic,
often framed as “advocating for” or “protecting”
one’s client, it is easy to dismiss
or to be fearful of the powerful process
of mediation, especially transformative
mediation. However, for those who are
venerable and wise with many years of
law experience who recognize and appreciate
the gravitas of the role of trusted
advisor, it is a wonderful wake-up message
to know about the alternative of
mediation. And, with the way the legal
profession is shifting, albeit slowly,
mediation is outgrowing its box of “alternative”
and growing into its true place
on the human spectrum of quality living
and quality engagement as the first way
complicated or emotional conflicts or disputes
are worked out.

As for “just money” conflicts, have you
ever had taken from you or given away
money without an emotional experience?
Transformative mediation is perfect
for the “it’s only about the money” kind
of case as well. We all have choices to
either maximize self-interest (which fuels
an adversarial ethic), or to place value
on the interplay of self and other. The
adversarial legal bar still has a powerful
choke on the dispute resolution industry
and on the empowerment of people who
want to live in a civil society. The institutional
legal lens is still narrow, even
after all these years of working towards
ADR. That said, there are brave souls
practicing law and in legal departments
who call upon the transformative mediation
process regularly and others who
have gone so far as to institute mediation
as a precursor to filing a suit or responding
to a complaint. You might be one of
these brave souls. They, like the clients
who request or insist on mediation, are
the heroes to bringing about a little more
peace in a chaotic world.

It is you and all of us in the legal profession
who have the greatest chance to
influence clients and society. The pendulum
is swinging in a new direction;
you have an opportunity to join the others
who have jumped off the cliff into the
refreshing waters of the transformative
mediation profession as a user or provider.
Maybe you will reconsider some
of the situations you have now in your
practice and recommend transformative
mediation. Maybe you will choose to
attend your first transformative mediation
training, or maybe you will ask your firm
to sponsor such a training and be a leader
in your community. You can be a trusted
source for positive change.

When businesses choose transformative
mediation as their process to work
out complex disputes or to break through
sticky personal conflicts between executives
or difficult or uncomfortable
employment or client matters, business is
enhanced because the matters are worked
through quickly and resource-efficiently
in one or a few face-to-face meetings.
You might be the catalyst for outcomes
that are acceptable and more sustainable
because they are neither arbitrary
nor forced but are created by the participants
themselves with process assistance
from the mediator. Most importantly, for
the long run, transformative mediation is
a way for the relational aspect of doing
business, including the practice of law, to
be restored.