Advocates call for new approach to ADR

The interest-based form of mediation has become widespread and mainstream, but there are those who wish to educate the field on another approach.

Transformative and narrative mediation are two distinct but similar approaches that attempt to increase objectivity by distancing the complainants from the problem in the hope that there will be long-term improvements in the relationship between them.

Daryl Landau, president of Common Ground Organizational Solutions, says the approaches come from different beginnings but have much in common.

“They both distinguish themselves as not being problem solving or interest-based. They are not focused on the prime goal of achieving settlement but of improving relationships.”

The book The Promise of Mediation: The Transformative Approach to Conflict by Robert Bush and Joseph Folger articulated the idea of transformative mediation. The main focus is on building understanding or recognition between the parties.

Bush and Folger describe the hallmark of recognition as “letting go — however briefly or partially — of one’s focus on self and becoming interested in the perspective of the other party as such, concerned about the situation of the other as a fellow human being, not as an instrument for fulfilling one’s own needs.”

According to the authors, people give recognition when they see, for example, that what they had taken as an intentional insult was the unpremeditated product of understandable frustration or merely a different mode of communication.

They might also see that the other party’s actions were an understandable attempt to deal with real and severe pressures due to the circumstances. The aim of the mediation is to offer the parties the opportunity to reinterpret statements or past behaviours in a more positive light.

Narrative mediation grew out of narrative therapy for individuals. It primarily looks at how people make meaning from their experiences. In Narrative Mediation: A New Approach to Conflict Resolution by John Winslade and Gerald Monk, the authors explain that people develop a story about what has happened and continue to act into a social situation out of the version they’ve created.

“Facts, from this perspective, are simply stories that are generally accepted,” they wrote. “From time to time, these stories lead to dramatically opposed readings of events.”

As a result, they say one of the major tasks of a mediator involves undermining the rigid and negative motivations the conflicted parties ascribe to each other. “People do act on stories, seeing who the villains and victims are,” Landau notes.

“The mediator looks for opportunities to shake that story with information that is an exception to their view. They try to highlight the exceptions and bring forth a different story that is not problem saturated. They then find a different way forward that is more positive.”

One technique is to externalize the problem by separating it from the person. “Try and personify the problem in some way,” Landau says. “The problem is an entity that has its own will. The conflict stands between the people, rather than something that is inside themselves.

Blame the conflict, not the person. Talk about the distrust between people as opposed to who’s trustworthy or talk about the ways a miscommunication is tricking us into behaving in a certain way, trying to control us in the conflict.

Then together, the parties can face up against the miscommunication. The constant goal of the mediator is to keep the problem as the problem.”

A pure narrative or transformative approach probably works best when there’s a long-term relationship that’s very important to the parties and they’re willing and able to reflect.

Landau uses these approaches in marital breakdown, estate, parenting, and other kinds of family disputes as well as neighbourhood or workplace matters.

“These are great areas where ongoing relationships are more critical than the presenting problems. And it’s often the case, with the exception of significant financial issues or complex substantive issues, that the presenting problems would not be difficult for people to resolve if they felt less hostile to each other. So reduce the hostility and then empower them to solve the rest.”

Landau finds the technique works better on an individual basis. “You might have to separate the parties and proceed more one on one.”

Rick Russell, a lawyer and mediator at Agree Dispute Resolution, agrees. “Transforming relationships or changing people’s views of one another takes one-on-one conflict coaching with time to reflect in between.

With that in mind, mediators need to design the mediation process with multiple, shorter, and often emotionally intense sessions, not the usual four-to-eight-hour transactional model.”

Narrative and transformative techniques can apply to virtually any mediation if people have the training to use them. “The mediator needs to consider if they have the requisite knowledge and skills,” says Russell.

“Many mediators of commercial cases have not taken academic or skills-based training in relationship capacity building and therefore may not be competent in this area where the techniques and goals are different.”

For his part, Landau believes it’s best if mediators understand a number of approaches and try to integrate them into their techniques. “I would like to see all mediators have these skills. So far, the bulk of mediators are not integrating these schools of thought.

They would be beneficial in something like estate law. If there is an opportunity for recognition or to change the story, an interest-based mediator may not have the skills to exploit it. In the problem-solving approach, the parties may make a deal but never speak again.”

One criticism of these approaches is that they reject problem solving in favour of working on the relationship when in fact most parties come to a mediation with the expectation of reaching a settlement. But can a mediator impose a relationship-building agenda on the parties?

“That’s a tough question,” Landau responds. “It’s not harmful and can be helpful if it encourages them to understand each other. It’s in their long-term interests and may even lead to a settlement.”

Russell is more cautious. “It’s important to keep the clients’ interests in mind. Do they want their relationship transformed or do they want a deal to end the litigation? Most often, in legal disputes, it is the latter.

Many of the concepts and techniques can be borrowed and used in transactional applications but always with reference to the clients’ goals.

Otherwise, it can be presumptuous and even patronizing to hijack parties who want a deal into a process which may actually reduce rather than enhance the likelihood of a resolution.”

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