Cracking the code for Transformative Mediation

Transformative Mediation – Principles or a theory of Practice? Cracking the code

David Mitchell M.Hlth Mgmt, MB,BS, PRI NMAS

The 1990’s were difficult times for mediators. The frozen-faced, neutral facilitative mediator was under challenge from the adversarial, evaluative, directive negotiator-lawyer. Societal mores were changing, driven by the push for patient autonomy in medicine; by philosophers like Gilligan[1] calling for equality and empowerment in female psychology; by the humanistic, person-centered approach of psychologists (Carl Rogers);by Pro-social theory; by the drive for authentic leaders imbued with Emotional Intelligence[2]; and through Perls’ present-centered, Gestalt Theory of endless cycles of creation and destruction.

Many expert mediators attempted to formalise, categorise, differentiate and rationalise their view and lived experiential theories of mediation. Each new developer insisted that their ideology/theory was the only one to use, creating an evangelical following of mediators as believers. Transformative mediation, formulated by Bush and Folger in their book, The Promise of Mediation: The Transformative Approach to Conflict[3], was a controversial example of this trend.

The shared experiences of Folger and?Bush and other mediators was that :

“The most memorable cases (mediations) were the ones where parties came in looking ‘small and closed’ but left seeming ‘bigger and more open’ – and the ‘shift’ was as striking to them as it was to us. In other words, the parties themselves taught us about the importance of what we later called ‘empowerment and recognition’ shifts. We simply reflected on what was happening before our eyes and tried to find words to describe and explain this key positive impact of mediation. The result was the transformative theory.” [4]

Bush and Folger’s drew from Pro-social theory (See Table 1)

the concept of a balanced, healthy person as having self-fulfillment and an ability and a need to freely interact with others which they termed a “Relational view of humanity”. (See Fig.1).

The critical resource in conflict transformation is the parties' own basic humanity - their essential strength, decency and compassion, as human beings.[5]

Della Noce expanded on Bush and Folger’s premise:

?“Relational ideology… portrays human beings as fundamentally social, that is, formed in and through their relations with other human beings, essentially connected to others, constantly relating to others through dialogue, and motivated by a desire for quality interactions with others” [6]

?Bush and Folger’s view of conflict mediation was to insist that a settlement- or needs-based approach was secondary to a transformation of each disputant [8]. Thus there was no need to strive for a settlement or solution to the problem/conflict. This expectation has been called by critics “the moral imperative” i.e.feeling good about self and others is more important than a settlement or resolution.[9]

The focus within each mediation was on restoring autonomy and self-fulfilment“ which they called “empowerment “ and?reconnecting with others called “recognition” or “perspective-taking” by which they meant?that each disputant recognised their own perspective and that of the other disputant and understood each other such that each would perceive a transformative “shift”[10].

?“Acknowledging the truth of our interconnectedness leads us to balance our own desire for autonomy and self-fulfilment with our need to connect with others, who have similar and sometimes competing needs.?[11]

From ?Bush and Folger’s perspective, conflict would disrupt/block and weaken?a person’s autonomy and cause a breakdown and withdrawal in interaction with others. Unless the conflict was removed/solved an endless, vicious cycle of weakness and interactive breakdown would exist (Fig.2).

To achieve a return to a healthy cycle, Bush and Folger expected the two disputant’s “voices” or dialogue (akin to their narratives) to develop into shared perspectives and self-worth that was “transformative”…. an enrichment of the quality of the interaction and the personal/interpersonal awareness of the individuals involved, evidenced by new understandings, shared meaning, appreciation of difference, deliberation, and ultimately, considered decisions about how to act”[12]

The making of a Transformative mediator.

Bush and Folger recognised that the mediator required a number of skills:

1. Trustworthy and authentic

2.Articulate and flexible in communication modes

3.Reflective

4.Active listener

5. Patient

6. Compassionate

7. An influencer of the disputants’ perspectives and mindsets who could subtly shift their “voices” (dialogue) towards moral growth (transformation).

8. Avoidance of any skew within the disputants’ dialogue (“voices”) towards settlement instead of transformation

Apart from items 7 & 8 these skills/attributes/virtues are considered to be a common feature of good mediators as outlined by Aristotle[13] in (384-322 B.C.) , Lawrence Boulle and Bowling and Hoffman[14] in 2000.

These eminent ?authors attest that such personal characteristics can be learnt or enhanced, by imitation, practice (habituation) and study. See Fig 3.

Bush and Folgar emphasised the use of mirroring and matching the disputants’ voices and body language; patience and pacing with the disputants’ dialogic rhythms; being a helpful "conversational companion"[15]; reflecting and summarising that which has been said and making use of open questions rather than “curious ?questions (these are ?open questions based on ‘What”, “When” “Where”, “Why” and “How”)[16]. There is little else (other than items 7&8) that is new or evolutionary. Practical instruction is minimal and one is left with a set of “principles”[17] that in themselves are part of most, if not all, mediation theories of practice. There is no accepted critical/scientific investigation (or proof) of the Transformative Theory. Mediators like Irvine ?and Gaynier, both accept it works but cannot see how.

Major critiques of Transformative Mediation.

The two commonest faults by critics are:

1.???The moral imperative:

?“I squirm with discomfort at the moral growth imperative of transformative mediation”[18]

and

“ to claim that it works because of something basic, fundamental or irreducible in human nature propels the model into the realms of faith.”[19]

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2.???Bush and Folger’s insistence that Transformative mediation must be used exclusively, uncontaminated by other methodology or techniques, within a mediation. This restriction ignored the complexity and diversity of individuals in a mediation.

…“these assertions strike me as contrary to mediation’s premise of recognizing multiple realities and responding differently to various contexts”

A “one size fits all” model has no chance of universal success. The variability of human nature, culture and society is countless. A skilled mediator will have a repertoire of skills, techniques, styles and life experiences to help her/him cope with changes on the go within every mediation.

?Curiosity may be the explanation: cracking the code

“All individuals experience curiosity, but they differ in its length and breadth, and in their threshold and willingness to experience it.”[20]

“’ …the desire to know in curiosity sustains one’s attention to the topic [and] makes it more likely that the desire will be satisfied”[21]

The transformative affect could be explained by the mediator’s style and the use of open questions that incorporate the curious words: What, When, Where, Why and How[22]. These words within a sentence, activate a human’s curiosity or intrinsic motivation (which are generally interchangeable terms), stimulating a sudden change in a mindset and an urge to tenaciously[23] follow another pathway or line of thought. ?Bush and Folger promote the use of What and How questions but not Why, When, Where in their doctrine of Transformative Mediation (although in expounding on Transformative Mediation, Bush uses Why freely)[24]. Kang et al[25] used What and How in their fMRI proof of positive release of Dopamine following these questions.

“Curiosity, can be successfully and strongly associated with positive emotions, such as vitality, attentiveness, interest, openness to experience, optimistic goal pursuit and, in general, to well-being. … and to a positive evaluation of ourselves, the world and the future.’[26].

Curiosity when aroused leads to a release of Dopamine, a neurochemical that generates a sensation of pleasure, which in turn flows into the?emotional and cognitive changes discovered by Kashdan (See note 26). These changes are comparable with a Transformative experience. Similar changes can be observed/experienced in mediations that do not use Bush and Folger’s methodology

Conclusion

The Promise of Mediation[27] is an aspirational model for mediator’s self-development and self-awareness, not a model for mediation . It can be viewed as a set of principles for mediators[28] and the explanations/justifications in many cases can be ascribed to most mediations, Bush and Folger’s insistence, that Transformative Mediation must be used exclusively, not co-mingled with other mediation practices,[29] restricts a mediator’s options and approaches within a mediation. Perhaps it is time for the Eclectic Mediator, a “Man for all Seasons”[30]

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[1] Gilligan, C. 1982.In a different voice: Psychological theory and women’s development. Cambridge, Mass.: Harvard University Press.

[2] Peter?Salovey and John Mayer. EMOTIONALINTELLIGENCE. IMAGINATION. COGNITION AND PERSONALITY,Vol.9131185-211,1989-90.

3 Robert A. Baruch Bush and Joseph P. Folger. 1994. The Promise of Mediation: responding to conflict through empowerment and recognition. Jossey-Bass, San Francisco CA..

4 Della Noce, D.J. Seeing Theory in Practice: An Analysis of Empathy in Mediation. Negotiation Journal 15, 229–244 (1999). https://doi.org/10.1023/A:1007599401576

5 Robert A. Baruch Bush and Sally Ganong Pope, Changing the Quality of Conflict Interaction: The Principles and Practice of Transformative Mediation , 3 Pepp. Disp. Resol. L.J. Iss. 1 (2002) P.14

Available at: https://digitalcommons.pepperdine.edu/drlj/vol3/iss1/4

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[7] Melé, D., Cantón, C.G. (2014). Relational Dimensions of the Human Being. In: Human Foundations of Management.p. 178-203 . IESE Business Collection. Palgrave Macmillan, London. https://doi.org/10.1057/9781137462619_10

[8] Bush and Pope Ibid note 5

[9] Gaynier, L.P. (2005), Transformative mediation: In search of a theory of practice. Conflict Resolution Quarterly, 22: 397-408. https://doi.org/10.1002/crq.110

[10] Della Noce ibid note 4

[11] Beal, S and Saul, J ?Examining Assumptions: Training Mediators for

Transformative Practice? In Folger, J and Bush, R (eds.) (2001) Designing

Mediation: Approaches to Training and Practice within a Transformative

Framework New York: Institute for the Study of Conflict Transformation

[12] Della Noce ibid

[13] Mitchell 3 ibid

[14] Boulle quoted in Bowling, D., & Hoffman, D. (2000). Negotiation Journal, 16(1), 5–28. doi:10.1023/a:1007586102756?

[15] Bush and Pope ibid Note 5

[16] Mitchell,D. 2022 The curious mediator asks curious questions. Pulse July 2022

[17] Irvine,C. Ibid note 2

[18] Gaynier Ibid Note 12

[19] Irvine Ibid note 2

[20] Christopher Peterson and Martin E.P. Seligman:Character Strengths and Virtues: A Handbook and Classification Chapter 5 p.126. Co-publishers: Oxford Uni. Press, New York and American Psychological Assoc., Washington, DC.

[21] ?Frederick F. Schmitt and Reza Lahroodi. ?THE EPISTEMIC VALUE OF CURIOSITY.EDUCATIONAL THEORY.?Volume 58.Number 2. 2008

[22] Mitchell,D.

[23] Schmitt and Lahbroodi ibid Note 20

[24] Bush and Pope ibid

[25] Kang, M. J., Hsu, M., Krajbich, I. M., Loewenstein, G., McClure, S. M., Wang, J. T., & Camerer, C.F. (2009). The Wick in the Candle of Learning. Psychological Science, 20(8), 963–973. doi:10.1111/j.1467-9280.2009.0240

[26] Enrique Rubio 2015 Disruptive Innovation downloaded 14.04.2021 from : https://www.dhirubhai.net/pulse/curiosity-way-fill-void-disruptive-innovation-enrique/???paraphrasing?Kashdan, Todd B., Paul Rose, and Frank D. Fincham. “Curiosity and Exploration: Facilitating Positive Subjective Experiences and Personal Growth Opportunities.” Journal of Personality Assessment 82.3 (2004): 291–305.?????Downloaded 18/04/2021 from https://www.academia.edu/5699234/Curiosity_and_Exploration_Facilitating_Positive_Subjective_Experiences_and_Personal_Growth_Opportunities

[27] Busch and Folger ibid

[28] Charlie Irvine ibid note?2

[29] Gayner?ibid. quoting Hedeen, “transformative practice cannot be co-mingled with other approaches, and that mediators are fully ‘transformative’ or they’re not at all, these assertions strike me as contrary to mediation’s premise of recognizing multiple realities and responding differently to various contexts”

[30] Robert Bolt A man for all Seasons - book, play, film.