Dispute Settlement Counsel

by Candice Cook & Michael Zeytoonian

When a layman hears the term, “mediation,” he or she generally conjures up in their mind someone who will serve as a third party adjudicator, like an arbitrator, to resolve a dispute.  The notion is that a mediator will ask questions of the disputing parties and help them come to an agreement.  This is only one type or style of mediation known as facilitative mediation.  For many years, it was the most common form of mediation.  In “The Promise of Mediation”, by Bush & Folger, however, another style was introduced:  transformative mediation.

The goal in a transformative mediation is two-fold.  Obviously, the first goal is to resolve the conflict, the main goal of any mediation.  But the second goal, a deeper goal, is to accomplish a real shift or change in the relationship between the disputants.  Transformative mediation earned its label because of its capability to transform the relationship between the parties.  Though they enter as opponents in their issues and position, they exit as allies joined by the solution.

In conflict, people often express feeling a loss of control of their situation and that the other side is not hearing or understanding them. To address these needs, the transformative model employs empowerment and recognition.  The mediator generally conducts the mediation with both parties present to allow each party the opportunity to express himself or herself and so that each side can hear the other’s perspective and concerns.  These elements provide value to the mediation process that are not provided when parties share their concerns, feelings, fears or issues with a third-party neutral in a private caucus.  Often, a party needs recognition from the opposing party, not the mediator, and the opposing party needs to comprehend the other party’s needs.

Empowerment often results from recognition.  Once parties feel recognized and empowered, they are able to focus on their goals and options.   Empowerment opens a door, enabling the parties to openly offer and consider suggestions for possible resolution.  Thus, the transformative model gives parties the chance to reach a deeper, more lasting resolution, not only through the creativity of their solutions, but because of the shift that has occurred in their relationship and respective outlooks.

What types of disputes could utilize transformative mediation?  Any dispute that involves an on-going relationship is a prime candidate for transformative mediation, particularly when there are issues beneath the surface that need to be addressed.  The types of disputes that could benefit include business disputes between seller and supplier, contractor and subcontractor, management and staff; employment disputes between employers and employees, administration and staff; or family-owned or closely-held companies in which all parties stand to gain from maintaining a healthy relationship.  Additionally, disputes involved in all areas of family law, such as probate, guardianship/conservatorship and juvenile matters, would greatly benefit from transformative mediation because of delicate family ties.  Finally, entrepreneurs, social enterprises, green companies and mission-based or non-profit organizations would also benefit, because so much of their business involves maintaining relationships, getting investors or donors or receiving government funding and because their business philosophies are consistent with this more holistic approach to dispute resolution.

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Co-Author Candice Cook is affiliated with the Massachusetts Collaborative Law Council and New England Law Boston. Ms. Cook is a  Developmental Editor for the New England Journal of International and Comparative Law, and is a member of the Intellectual Property Law Association.

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