A Measure of Success in Mediation
I like when people leave a mediation session in a good mood. Sometimes that happens even if the dispute has not yet settled, as in a recent session. Nevertheless, as a mediator, I view this as one measure of success.
The recent mediation involved a simple matter of collecting on a debt. Usually no one is particularly happy in this context. The creditor hasn’t been paid; the debtor usually can’t pay. The context is fraught with tension. The usual negotiation of this kind of dispute involves the struggle for the amount that the parties can just barely tolerate to end the dispute – too much for one side, not enough for the other. Usually, there is not much joy in this contest. Why was this particular session so uplifting for the participants? Well, I’ll tell you.
For the two preceding days before the mediation, while awaiting my fate in a criminal court’s jury assembly room and then in a trial courtroom – to see if I would end up on a jury – I spent most of the time reading and thinking. I have been reading Bush and Folger’s The Promise of Mediation and exploring their view of transformative mediation.
Although I perceive that transformative mediation is better suited for disputes involving prior relationships, and not necessarily for commercial cases, I decided, for this recent mediation, to utilize a part of the approach highlighted in the book and to see what would happen.
According to the authors, in transformative mediation the goal is to improve (i.e., to transform) the conflict interaction between the disputants. The focus is not on settling per se but rather on empowering the disputants to grapple with their conflict themselves, to deal with their own emotions and each other’s, to increase understanding, and from that to find their own solutions … or to choose not to do so. The mediator takes a step back to allow all this to happen but nevertheless is fully present, listening actively, helping when needed but only to maintain the flow and increase the clarity of the conversation. But to empower the parties themselves, the mediator allows them to lead, to decide how they want to interact, to choose what they want to say and do, and when, and even to choose how they want to end the conversation, whether in settlement or otherwise. The main thrust of transformative mediation is self-determination throughout.
In this recent mediation, personally attended by two attorneys and the debtor, with the creditor’s out of state representative only available by phone, I asked what they wanted to do. Ultimately, the debtor’s attorney wanted a joint conversation among everyone, with the creditor’s representative attending and participating by speaker phone. I was elated.
The joint conversation occurred. I was present but silent. Each side leveled with the other and then the teleconference ended. More work needed to be done, they agreed, with each side reassessing its position, and the parties would resume their conversation later.
Almost immediately, one attorney offered: “That was very productive.” The other agreed that the conversation was “more productive than he’d seen in many other mediations.”
I was happy that they were happy, and everyone finished up in a good mood … even if the case did not settle at that moment.
Consistent with the transformative approach, success was palpable in the room because the conflict interaction of the parties had been improved … which may of its own accord lead to resolution later.