Transformative Mediation Case Study

There is a misperception that transformative mediation doesn’t settle cases as often as other mediation approaches do. That misperception arises because of the tendency of transformative mediators to focus on benefits other than settlement, and because of the lack of research that shows the settlement rates of other approaches.

Transformative mediation’s success has indeed been based largely on factors besides settlement rates. The US Postal Service (which has the world’s largest workplace mediation program) chose transformative mediation because it wanted a program that would have “upstream effects”. That is, not only did it aim to affect the parties to the mediation, but also to improve the working environment for all employees; and it wanted that change to last. The USPS hoped that, because transformative mediation focuses on improving the quality of conflict interaction, the postal management and employees would develop a more harmonious relationship. And research showed that the program worked (See Chapter 16 “Mediation at Work: Transforming Workplace Conflict at the U.S. Postal Service” of Transformative Mediation: A Sourcebook). But that program also had a less-publicized effect. It resolved cases.

The vast majority (close to 80%) of complaints that were mediated with the transformative model went away after one mediation session. The USPS’ previous mediation program, based on a “facilitative” model, was less successful at resolving cases. And there is no reliable study of mediation outcomes that shows a higher rate of settlement than that of the REDRESS Program.

But the misperception persists that transformative mediation does not solve problems and produce outcomes that organizations and courts value. The misperception persists for at least two reasons. FIrst, we point to things like the “upstream effects” of REDRESS, and that those effects occur regardless of whether settlements occur. Second, we lack a meaningful way to compare our closure rates with other methods, as insufficient research has been done on those other methods. (To the extent there are anecdotal examples of small programs that seem to lead to settlements, such as Early Neutral Evaluation in Minnesota for which I’ve seen a claimed 75% settlement rate, even those examples generally don’t show rates higher than REDRESS’). And in my own divorce mediation cases, settlements have become more common, as I’ve let go of any attachment to leading my clients there, but my practice has not been the subject of a scientific study.

It’s appropriate that we emphasize the empowerment and recognition shifts that occur, as well as the upstream effects, because these are what matter most to the parties and their organizations. But let’s not forget, for those focused on settlement, that our process has more evidence of its effectiveness on that level than does any other mediation approach.

Archived Comments:

Transformimg system or person

by stephen selig (not verified) – 02/13/2012 – 06:40

Is the question judicial efficiency or conflict resolution; at what point do we look at the objective of the communication as opposed to the structure; interest based communications may bridge this gap; it appears the school based mediation and character programs may be the road before the fork;



I.    Introduction

II.  Transformative Mediation

III. Transformative Development

IV.  Case Study:  South Africa





INTRODUCTION                                                                                            

The transformative model is perhaps the most vague and difficult to define.It is a position in which the process and understanding of the parties assumptions and needs are more important than an either/or question, but an and/or.The very question itself is transformed.It involves creativity, perspective and dialogue.It is experiential.It looks beyond the typical A and B, instead looking at 3. This is predicated on the assumption that basic needs are being met. (Johan Galtung) Examples of basic needs are: food, safety, water, and well-being.Transformation represents a paradigm shift, moving beyond what is readily apparent and finding the answer beyond the original question.For example, you could give an orange to different groups and ask what they would do with it.Do they divide it equally or squeeze it for orange juice for everyone (distributive)? Or do you ask what the individuals want with the orange and find ways to meet their needs? (Johan Galtung).Any type of process can be transformative, if the parties involved are willing.It is not the singular process of mediation, facilitation or negotiation.While this process can be applicable in a multitude of areas, we will specifically look at Transformative mediation, Transformative development, and the Transformative model as used in the reconciliation process of South Africa .

Reference:

Galtung, John. (2004).  Transcend and Transform, An Introduction to Conflict Work, Paradigm Press: Colorado.

TRANSFORMATIVE MEDIATION                                                                                

In 1994, Baruch Bush and Joe Folger first coined and explored the concept of “transformative mediation”.Unlike problem-solving mediation, transformative mediation does not seek a solution for the immediate problem. Instead transformative mediation uses empowerment and mutual recognition of the parties involved in order to understand the problem on many levels.

Through empowerment, parties are encouraged to examine their issues and develop their own solutions.Through recognition, the involved parties are encouraged to understand the other party’s point of view, and why they seek the solution they do. In transformative mediation, the mediator plays the role of a neutral third party and the involved parties are responsible for all the outcomes.

The Ten Hallmarks of Transformative Mediation, as listed on the University of Colorado Transformative Mediation website are as follows:

  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 explore 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."

References:

Bush, R. A. B., & Folger, J. P. (1994). The Promise of Mediation. San Francisco: Jossey-Bass

Burgess, Heidi.Transformative Mediation.1997.Online.Internet.University of Colorado.< http://www.colorado.edu/conflict/transform/tmall.htm#Hallmarks>

DEVELOPMENT

“Peace is both the absence of war and the creation of positive social conditions which minimize destructive conflicts and promote human well-being.” Joseph Sebarenzi, Author of: God Sleeps in Rwanda: A Journey of Transformation

Conflict Transformation is defined as a way to envision and respond to the ebb and flow of social conflict; as life-giving opportunities for creating constructive change processes that reduce violence, increase justice in direct interaction and social structures, and respond to real-life problems in human relationships (Lederach, 2003). This definition transforms the historical perspective on development from economics toward one focused on basic human needs, as well as the need for welfare, freedom, security, and meaning/identity (Galtung, 1996).

Economic Development Perspective:

“Economic Development in the past has been typically seen in terms of the planned alteration of the structure of production and employment so that agriculture’s share of both declines and that of the manufacturing and service industries increases. Development strategies have therefore usually focused on rapid industrialization, often at the expense of agriculture and rural development.” (Todaro, 1994). 

Human-Based Development Perspective:

Culture-oriented perspective: Development as the unfolding of a culture; realizing the code or cosmology of that culture.

Needs-oriented perspective
:Development is the progressive satisfaction of the needs of human and non-human nature, starting with those most in need.

Growth-oriented perspective: Development is economic growth, but at nobody’s expense.

Johan Galtung addresses the need for a dynamic and holistic approach to understanding development, human and nature centered, interconnected (Galtung 1996).

Tatsushi Arai, proposes that, “a development-sensitive approach to conflict work requires an in-depth analysis of the root causes, both structural and cultural, of under-development in general and poverty in particular. In terms of basic human needs, development sensitivity involves understanding what hinders access to essential resources (or basic needs) for realizing the potential of the individual and society, as well as what restricts access to opportunities for progressive satisfaction and development of perceived needs.

References:

Arai, Tatsushi. (2009). Conflict and Development. CONTACT. Vermont.

Galtung, Johan. (1996). Peace by Peaceful Means. London. Sage Publications.

Lederach, John Paul. (2003). The Little Book of Conflict Transformation. Good Books. California.

Todaro, Michael. (1994). Economic Development, 5th ed. Addison Wesley Longman. Massachusettes.

CASE STUDY: SOUTH AFRICA                                                                                       

The transformative model of conflict resolution has been used in historically conflicted communities that are transitioning from horrific events and human rights abuses to a system of equality and democracy. Most notably, the transformative model was used in the reconciliation and transition process of South Africa after the end of Apartheid in 1994. Arch Bishop Desmond Tutu remarked in late 1993, “Once we have got it right, South Africa will be the paradigm for the rest of the world.”[1]

One factor that is necessary in leading to a transformative process is what William Zartman describes as “ripeness.”[2] South Africans had to first and foremost realize the path they were on was a dead end. Once this had been concluded by all parti

es, and there was motivation and incentives for all parties, they could go through a transitional process together.

 The transformative process in South Africa included[3]:

 1. Trust and relationship building of the two major political parties in South Africa at the time—this was achieved partially through dialogue work, and this accomplished recognition of the other parties perspective of the conflict.

 2. Inclusiveness in the process--making sure all voices were heard and respected, even the armies’, which achieved a more relational view of the world.

 3. Equality of protection for all citizens under a new political regime—each party involved in the transition of South Africa had to feel their basic needs, including safety, would be met under a new regime that could possibly be run by former rivals.

4.Good faith negations that would meet the interests of all parties, and leave all parties invested in:the transformative process, and the outcome and/or future of their country.

 5. The Truth and Reconciliation Commissions, which was to bear witness to, record and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, reparation and rehabilitation.

South Africa’s transition and transformational process is just one example of the transitional model at work in historically conflicted communities, but it is an important example because it demonstrates, as Timothy Sisk describes,"a model of step-by-step measures to promote a just peace in a society deeply divided during the course of a profoundly unjust history.”[4]



References:

[1] Quoted in Sparks, Tomorrow is Another Country, p. 10.

[2] William Zartman, “Negotiating the South African Conflict,” pp. 147–49, quoted at p. 147.

[3] David T. Jervis, “Miracle or Model? South Africa’s Transition to Democracy,” in International Third World Studies Journal and Review, Volume XVI (2005), p. 5-7.

[4] Timothy D. Sisk, “Democratization and Peacebuilding: Perils and Promises,” in Turbulent Peace, eds. Crocker, Hampson, and Aall, p. 787.

CONTRIBUTORS:                                                                                                               

Adira Zwelling
Julie Buckley
Kelsey Lundgren
Sarah Rubin

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