Mediation- in a Transformative Manner

Transformative mediation was developed by Robert A. Baruch Bush and Joseph Folger and focuses primarily on empowerment of the parties and their recognition of the other party, and secondarily on the resolution of a dispute.

Empowerment in this context means parties will take responsibility for defining their unique complex of issues, facts, requirements and required solutions. Ideally, this should translate into better decision-making, and in better recognition of the position and identity of the other party. In other words, this is not about balancing power between parties.
Bush and Folger define the term as: “The restoration to individuals of a sense of their own value and strength and their own capacity to handle life’s problems.” By taking responsibility and searching /gaining greater clarity about their 1) goals, 2)resources, 3) alternatives, and 4) preferences, and using this to come to their own clearly developed decisions, parties should experience change in themselves and in their social interaction (read: opposing party) Mediator directiveness, apparent in especially evaluative mediation, is re-focused, minimized or non-existent.
Recognition is not rejecting opinions or views of another party simply because he/she has own opinions or views, but accepting the possibility of it being legitimate, and communicating effectively in this regard. No proper communication will take place with empowerment as defined, without recognition of possible legitimacy of the other side’s views. This requires empathy and maturity and may again require a certain mediator directiveness to achieve, however not bent on primarily resolving the dispute, but on under-lying interest-based issues of parties.

Thus recognition and empowerment are two sides of the coin. The mediator cannot determine the extent to which an opponent’s views will be recognised, but recognition may along the long road result in dispute resolution/reconciliation
Experience has shown that interpersonal conflicts (conflicts in families, between neighbours, co-workers) tend to be better suited to transformative mediation because the conflict resolution often requires or leans towards personal growth.
Other forms of mediation may require different inputs but may develop into Transformative Mediation. Thus in the event of Mediation with organizations, the resolution of disputes between organisations may require Transformative mediation aspects to be applied to individuals in that organisations. Transformation to have meaning, must extend to the transformation of the organisation on every level and in policy issues.

The Hallmarks of Transformative Mediation as set out by Busch and Folger are:
1. At the start the mediator explains transformative mediation, especially its purpose and the mediator’s role;
2. Parties will be empowered to take responsibility for the outcome;
3. Transformative mediators do not express a judgement about the parties, their views and decisions.
4. the departure point is that the parties’ are competent and have constructive motives.
5. constructive emotions are allowed against acceptance and exploration of parties’ insecurities;
6. Transformative mediators remain focused on what happens in the moment, but are responsive to parties’ statements about past events and future expectations.
7. Mediation may require further interventions since it does not seek resolution in the first instance.
8. Lack of settlement is not a “failure” if empowerment and recognition occur.

Dirk Joubert
Attorney
October 2018