Transformative Mediation

Summary by Heidi Burgess

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NOTE: This component of the Consortium's web site describes transformative mediation as it is presented in Bush and Folger's book, The Promise of Mediation. Others advocate alternative approaches to mediation. We have not attempted to describe these alternative approaches or summarize the debate concerning which approaches are most applicable to specific situations. Our site does, however, include links to other sources of information about mediation and dispute resolution. See: Conflict Resolution in the United States and General Conflict Resolution Theory.

 

What It Is


Though transformative mediation has roots that go back to the 1970s, the term and approach have been brought to the fore by the publication of Baruch Bush and Joe Folger's book The Promise of Mediation in 1994. This book contrasts two different approaches to mediation: problem-solving and transformative. The goal of problem solving mediation is generating a mutually acceptable settlement of the immediate dispute. Problem solving mediators are often highly directive in their attempts to reach this goal--they control not only the process, but also the substance of the discussion, focusing on areas of consensus and "resolvable" issues, while avoiding areas of disagreement where consensus is less likely. Although all decisions are, in theory, left in the hands of the disputants, problem solving mediators often play a large role in crafting settlement terms and obtaining the parties' agreement.

The transformative approach to mediation does not seek resolution of the immediate problem, but rather, seeks the empowerment and mutual recognition of the parties involved. Empowerment, according to Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do. (Seeing and understanding, it should be noted, do not constitute agreement with those views.) Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.

From here, you can scroll through all the information on transformative medation, or you can click on particular items of interest in the list below.

[click here] for more information on empowerment and recognition

[click here] for a comparison of transformative and problem solving mediation

[click here] for a list of Folger and Bush's ten "hallmarks" of transformative mediation

[click here] for a discussion of applications of transformative mediation

[click here] for information on how to find a transformative mediator

[click here] for information on how to find transformative mediation training

[click here] for abstracts of books and articles on transformative medation and associated ideas

[click here] to go back to opening page of this website

 

Key Concepts: Empowerment


"Empowerment" is used by Bush and Folger in a way that differs from common usage. It does not mean power-balancing or redistribution, but rather, increasing the skills of both sides to make better decisions for themselves. Specifically, Bush and Folger use the term "empowerment" to mean "The restoration to individuals of a sense of their own value and strength and their own capacity to handle life's problems." (Folger and Bush, 1994, p. 2) In a latter publication, they further explain that through empowerment, disputants gain "greater clarity about their goals, resources, options, and preferences" and that they use this information to make their own "clear and deliberate decisions." (Folger and Bush, 1996, p. 264)

Clarity about goals means that parties will gain a better understanding of what they want and why, and that their goals are legitimate and should be considered seriously.

Clarity about resources means that the parties will better understand what resources are available to them and/or what resources they need to make and informed choice. In addition, parties need to learn that they hold something that is of value to the other party, that they can communicate effectively with the other party, and that they can utilize their resources to pursue their goal(s).

Clarity about options means that the parties become aware of the range of options available to them, they understand the relative costs and benefits of each option, and that they understand that the choice of options is theirs alone to make.

Clarity about preferences means that the parties will reflect and deliberate on their own, making a conscious decision about what they want to do, based on the strengths and weaknesses of both sides' arguments and the advantages and disadvantages of each options.

In addition to these forms of empowerment, Bush and Folger add skill-based empowerment to the list, meaning that parties are empowered when they improve their own skills in conflict resolution, or learn how to listen, communicate, analyze issues, evaluate alternatives and make decisions more effectively than they could before.

Empowerment occurs in transformative mediation when the mediator watches for opportunities to increase the parties clarity about or skills in these areas, but does so in a way that the parties maintain control of both the process and the substance of the discussions. Unlike problem-solving mediators, transformative mediators are careful to take a secondary role, rather than a leading role in the process--they "follow the parties" around, and let the parties take the process where they want it to go. (See the discussion of "hallmarks" below.)

 

Recognition


By "recognition," Bush and Folger mean considering the perspective, views, and experiences of the other: recognition, they say, "means the evocation in individuals of acknowledgment and empathy for the situation and problems of others." (Bush and Folger, 1994, p. 2.) Thus recognition is something one gives, not just something one gets.

Given the importance of empowerment, however, transformative mediators allow the parties to choose how much they want to recognize the views of the opponent. They may do so to the point that complete reconciliation takes place, or they may do so to a much lesser extent, just momentarily being willing to "let go" of their interest in themselves and focus on the other person as a human being with their own legitimate situation and concerns.

[click here] to go back to the list of transformative mediation topics

 

Comparing Transformative to Problem Solving Mediation


There are many differences between transformative and problem solving mediation. The only similarity is that each uses a third party to assist the disputing parties to begin dealing with the dispute in a new way. What that "new way" is, however, differs considerably from one process to the other. Problem-solving or "settlement-oriented" mediation, which is by far the dominant approach in the field today, is just what the name implies--it is focused on solving a problem by obtaining a settlement.

The settlement-oriented mediator usually explains that this is the purpose at the outset and defines a process that will assist the parties to work toward that goal. All of the mediators actions also are designed to facilitate that outcome. Emotions which might escalate anger and thus prevent a settlement are controlled. Issues that are non-negotiable are diverted, while parties are encouraged to focus on negotiable interests. Mediators tend to discourage a discussion of the past, as that often involves blame which can make progress more difficult. Rather, parties are encouraged to focus on what they want in the future, and develop ways in which their interests can be met simultaneously.

Sometimes the settlement-oriented mediator acts more like an arbitrator than a transformative mediator, proposing a solution and working hard to "sell" it to the parties. (An arbitrator's decision is binding, he or she does not have to "sell" it. However, the settlement oriented mediator sometimes acts like an arbitrator when he or she takes the role of the "expert," and comes up with the settlement provisions for the parties.) Settlement-oriented mediators often try to keep the parties moving forward, encouraging them to move from one "stage" to the next as quickly as possible and using a deadline as an inducement to come to an agreement.

Transformative mediators work very differently. They explain in the opening statement that mediation provides a forum for the parties to talk aout their problem with a neutral third party present. This can be helpful, it is explained, to clarify the nature of the problem from both parties' points of view and for developing a range of options available for dealing with the situation. This process should help the clients make better choices about how to proceed and may help them better understand the views of the other person. This understanding may enable the clients to reach a mutually satisfactory solution, or it may suggest other approaches for handling the situation. Thus settlement is presented as one, but clearly not the only possible successful outcome of mediation.

Usually, transformative mediators will then work with the parties to develop goals, groundrules, and a process they want to use. Mediators will make suggestions about process and ask questions (usually to encourage either empowerment or recognition of the other), but they will not direct the conversation, nor will they suggest options for settlement. This is the parties' job. Bush and Folger describe the mediator's job as "following the parties around," helping them clarify for themselves and for the other what their real concerns are and how they want to see them addressed. Sometimes, recognition by the other is all that is really needed to reach mutual satisfaction. Other times, parties must go beyond this to negotiate interests. Interest-based negotiation is, of course, allowed in a transformative process--but it usually shares center stage with the discussion of feelings and relationship issues.

The definition of success also differs in the two kinds of mediation. Typically, settlement- oriented mediation is not considered successful unless a settlement is reached. Transformative mediation, however, is successful if one or both parties becomes empowered to better handle their own situation and/or the parties better recognize the concerns and issues of the other side. Very often, the empowerment and recognition gained by the parties allows them to develop a mutually agreeable outcome. However, according to Bush and Folger, the opposite is not as often the case--the settlement-oriented mediation process does not lead to empowerment and recognition, as it tends to ignore the relationship issues in favor of the narrower and more concrete interests. A further comparison between the two processes is presented in the figure below.

Comparison of Transformative and Problem Solving Mediation

Note:These are idealized descriptions. Actual mediators will hold these ideas and follow these actions to lesser or a greater degree.

Transformative Mediation Problem Solving Mediation
Assumptions about conflict Conflict is an opporunity for moral growth and transformation Conflict is a problem in need of a solution
Conflict tends to be a long term process Conflict is a short term situation
Ideal response to conflict Facilitate parties' empowerment and recognition of others Take collaborative steps to solve identified problem; maximize joint gains
Goal of mediation Parties' empowerment and recognition of others Settlement of the dispute
Mediator role Secondary: parties are seen as experts, with motivation and capacity to solve own problems with minimum help Mediator is expert, who directs problem solving process
Mediator is responsive to parties Mediator directs parties
Mediator actions Mediator explains concept of mediation, but lets parties set goals, direct process, design ground rules. Makes it clear settlement is only one of a variety of possible outcomes. Mediator explains goal is settlement, designs process to achieve settlement, sets ground rules. May consult parties about these issues, but mediator takes lead.
Mediator "microfocuses" on parties' statements, lets them frame issues themselves Mediator "categorizes" case, frames it for disputants
Mediators allow parties to take discussions where they want them to go; encouraging discussion of all issues that are of importance to the parties, regardless of whether or not they are easily negotiable;

Mediators encourage mutual recognition of relational and identity issues as well as needs and interests

Mediators direct the discussions, dropping issues which are not amenable to negotiation (for example, relational or identity issues) and focusing on areas "ripe" for resolution (usually negotiable interests).
Mediators encourage an examination of the past as a way of encouraging recognition of the other Mediators discourage discussion of the past, as it tends to lead to blaming behaviors, focus instead is on the present and future--how to solve the current problem.
Emotions are seen as an integral part of the conflict process; mediators encourage their expression Emotions are seen as extraneous to "real issues." Mediators try to avoid parties' emotional statements, or emotions are tightly controlled.
Mediators encourage parties' deliberation of situation and analysis of options; parties' design settlement (if any) themselves and are free to pursue other options at any time Mediators use their knowledge to develop options for settlement; can be quite directive about settlement terms
Mediator focus Mediators focus on parties' interactions, looking for opportunities for empowerment and/or recognition of the other Mediators focus on parties' situation and interests, looking for opportunities for joint gains and mutually satisfactory agreements
Use of Time Time is open-ended; parties spend as much time on each activity as they want to. No pre-set "stages" as in problem solving mediation Mediator sets time limits, encourages parties to move on or meet deadlines. Mediator moves parties from "stage" to "stage."
Mediation: definition of success Any increase in parties' empowerment and/or recognition of the other--"small steps count" Mutually agreeable settlement

[click here] to go back to the list of transformative mediation topics

Hallmarks of Transformative Mediation


The Summer 1996 issue of Mediation Quarterly was a special issue on transformative approaches to mediation. The lead article in that issue was written by Folger and Bush, as a follow-up to their 1994 book, The Promise of Mediation which brought the concept of transformative mediation to national attention. While the book began to describe what transformative mediation might look like in practice, the Mediation Quarterly article ("Transformative Mediation and Third-Party Intervention: Ten Hallmarks of a Transformative Approach to Practice" Volume 13, Number 4) goes further to list ten "hallmarks" that distinguish transformative mediation from other forms of intervention. This article is abstracted elsewhere in this website, but a quick list of Folger and Bush's hallmarks are found below.

[Click here] to see the abstract of the article which lists the hallmarks with a bit more detail.

Summary of Folger's and Bush's ten hallmarks:

  1. In the opening statement, the transformative mediator will explain the mediator's role and the objectives of mediation as being focused on empowerment and recognition.
  2. The transformative mediator will leave responsibility for the outcomes with the parties.
  3. A transformative mediator will not be judgmental about the parties' views and decisions.
  4. Transformative mediators take an optimistic view of the parties' competence and motives.
  5. Transformative mediators allow and are responsive to parties' expression of emotions.
  6. Transformative mediators allow for and explor parties' uncertainty.
  7. Transformative mediators remain focused on what is currently happening in the mediation setting.
  8. Transformative mediators are responsive to parties' statements about past events.
  9. Transformative mediators realize that conflict can be a long-term process and that mediation is one intervention in a longer sequence of conflict interactions.
  10. Transformative mediators feel (and express) a sense of success when empowerment and recognition occur, even in small degrees. They do not see a lack of settlement as a "failure."

[click here] to go back to the list of transformative mediation topics

Applications of Transformative Mediation


Transformative mediation is a new concept that has not been widely applied, although many mediators have been acting in this way, without having a name for it, for a long time. Since empowerment and recognition are things that happen to people, the transformative approach is most often thought of in terms of interpersonal conflicts--family conflicts, conflicts between neighbors, between co-workers, etc. However, Bush and Folger argue in the Promise of Mediation, that the approach is just as applicable in other kinds of settings as well. Legal mediation can be criticized for being more directive than most other forms of mediation, and would benefit greatly, they argue, from the adoption of a transformative approach, leaving directive intervention to the courts and judges. The same is true, they argue, for business mediation.

Mediation with organizations, rather than individuals becomes more complicated, although it is always individuals who represent the organizations at the table. However, problems can develop when the representatives are transformed by the mediation process, but their constituencies, who are not at the table are not. This creates what Burgess and Burgess (Mediation Quarterly 13:4) call the "scale up problem." Methods must be found to transfer this transformation to the constituencies if the effect is to have widespread significance at the organizational, public policy, or societal level.

Although few people have explored how this might be done, several experiments have been suggested and/or tried. Ones written up in the Mediation Quarterly special issue on transformative mediation (13:4) include the Burgesses' technique of "constructive confrontation," the Public Conversation Project's use of dialogue on public policy disputes, and Jay Rothman's approach of "reflexive dialogue" which he uses with people involved in societal level identity conflicts, such as the conflict between Israeli Jews and Palestinians. Also of interest is Frank Dukes' investigation of transformative public policy conflict resolution and John Paul Lederach's concept of conflict transformation in protracted and deep-rooted religious, ethnic and nationalistic conflicts. (Further summaries of all of these approaches can be found in the abstracts section of the website.)

[Click here] to go to the abstracts of these articles.

[Click here] to go back to the list of transformative mediation topics

How to Find a Transformative Mediator


We hope to be able to give a list of transformative mediators at this location in a few months; however, this list is not yet available.

Anyone seeking a mediator who uses a transformative approach should interview several mediators before selecting one. Questions which will help identify mediators who use this approach include the following:

  1. Can you describe your approach to mediation? What do you see as your [i.e., the mediator's] role? What do you see as the parties' role? (A transformative mediator will explain that the mediator's role is to help the parties understand their current situation and choose options that make the most sense for them. A transformative mediator will listen, ask questions, summarize (without changing meaning), help the parties identify and understand the issues in conflict, identify and assess options (including non- settlement options), but the transformative mediator will not propose settlement terms, draft agreements or make decisions for their clients.)
  2. What is the goal of mediation? In other words, what is the outcome you seek? (A transformative mediator will stress the importance of empowerment and recognition. They may not use these words, but they will stress the importance of helping the parties understand and solve the problem themselves in a way that makes the most sense to them. They will also stress the importance of helping the parties better understand the views and experiences of the other disputant(s). They may mention that one possible outcome of mediation is settlement, but this will not be the only goal or even the primary outcome sought.)
  3. Do you have a standard process that you use? Can you describe it? (Problem solving mediators usually follow a standard set of procedures that start with the mediator's opening statement and agreement on groundrules, opening statements by the parties, clarification of interests, identification of possible areas of agreement, developing and fine- tuning settlement terms, and finalization of the agreement. Transformative mediator's process tends to be much looser, as it is set by the parties and taken the direction the parties want to go. Transformative mediators will start the same way, with opening statements and discussions of groundrules (and often goals), but then the process becomes much more fluid as the parties explore issues of their own interest in their own ways. )
  4. Do you have standard groundrules that you ask the parties to follow? What are they? (Most mediators will have some ground rules, such as not interrupting when someone is talking, but transformative mediators will indicate that the disputants play a significant role in developing the groundrules to be used.)
  5. How do you work with the parties to define the problem? To generate options? (Listen to get an idea of the extent of the mediator's involvement in this process. Does the mediator define the problem for the parties and suggest options for resolution? (The problem-solving approach) Or do they listen and clarify as the parties do this themselves? (the transformative approach)
  6. Do you suggest possible settlement terms? (See number 5, above.)
  7. Who would you say is responsible for the outcome of mediation--you or the parties? (The transformative mediator will say the disputants are responsible. The problem solving mediator will probably say that responsibility is shared between the mediator and the disputants. No mediator will guarantee a settlement in every case, but many problem solving mediators will mention that they get settlements in a large percentage of their cases--suggesting that this is, indeed the goal they seek and they see it as their responsibility to work toward that outcome.)
  8. How do you handle strong emotions in the mediation session? (A transformative mediator will explain that emotions are just as important as the "facts," and thus emotions need to be expressed, understood, and dealt with directly. The problem solving mediator may talk about a controlled "venting" process when emotions are "released" in a controlled situation, and thereby diverted so that discussions can center on interests and resolution of more negotiable issues.)
  9. How do you handle power imbalances between the parties? (Problem solving mediators may say that they work to equalize power because mediation works better when the power between the parties is close to equal. Transformative mediators will say that they work to empower both sides to understand the issues and options fully and to make decisions which best meet each person's own needs. A transformative mediator will not empower one side, but not the other.)
  10. Would you say you try to focus discussions more on the past or more on the future? Why? (Problem solving mediators like to avoid discussions of the past, as they can lead to blaming which may not facilitate productive settlement negotiations. Transformative mediators are more comfortable with discussions of the past, and often encourage them, as they are necessary for each party to recognize the views, situation, and experiences of the other.)

[click here] to go back to the list of transformative mediation topics

Getting Training in Transformative Mediation


We hope to be able to list transformative mediation trainers here in the future; however, a list is not currently available.

When looking for mediation training, questions to ask to determine whether or not the training utilizes a transformative approach include the following.

What model of mediation do you teach? The answer here should be "transformative," "relationship-centered," or "therapeutic" mediation. These approaches contrast with "problem-solving," "settlement-oriented," "bargaining," or "labor-management" mediation.

What are the goals of mediation in this model? Transformative training will emphasize relationship-building, empowerment, and recognition much more than obtaining a settlement.

What skills do you try to teach? Transformative training will teach participants how to structure a mediation in a way that is most likely to empower the parties and encourage mutual recognition; it will also teach participants how to recognize and exploit opportunities for empowerment and recognition when they occur.

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For More Information: Contact: Guy Burgess or Heidi Burgess, Co-Directors, Conflict Research Consortium, University of Colorado, Campus Box 327, Boulder, Colorado, 80309-0327, E-mail: burgess@colorado.edu Phone: (303) 492-1635; Fax: (303)492-2154.

Copyright 1997 by Conflict Research Consortium