A Critical Analysis of
The Transformative Model of Mediation

 

Terri L. Kelly
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Department of Conflict Resolution
Portland State University

 

Suggested citation:

Kelly, T. L. (1999). "A Critical Analysis of the Transformative Model of Mediation." (Unpublished graduate paper, Portland State University, April 1999). Portland, OR: Author.

 

Introduction

The Transformative Mediation Model has evolved as a result of observations of spontaneous transformations of thinking or unexpected "changes of heart" that occur during mediations, particularly with victim-offender mediation. In effect, the models have been shaped by observations, rather than by systematic analysis of theoretical concepts leading to applications. This paper suggests existing theories that may premise these models, and points out assumptions about human behavior implicated in those theories.

The Self-awareness Movement of the 1970s

The 1960s gave rise to the "Self-awareness Movement" of the 1970s, by addressing the power of directing our own consciousness as the medium in which to change our lives by changing our minds. No longer was the idea of solving your own personal problems limited to sitting in a room with one "trained professional" who could tell you more about you than you know yourself. Solving personal problems was no longer confined to the notion that everyone fit into only one niche or class or traditional psychoanalytic theory. Self-help workshops and interactive "sensitivity trainings" arose out of a growing interest in and awareness of Eastern philosophy and culture, which changed the way we went about understanding interpersonal conflicts as outgrowths of internal conflicts. The Beatles' song "Within and Without You" was a proclamation of this new Eastern-influenced way to look at the heart of the matter.

One of the leaders in this movement was a co-founder of the Esalen Institute at Big Sur, on the central coast of California. Dr. Frederick "Fritz" Perls, a German psychotherapist in the Freudian tradition, escaped with his wife to South Africa when Hitler came to power. From South Africa they emigrated to the United States and became U.S. citizens. Perls' experience of realizing that something was greatly wrong with how we resolve our differences if the way they were doing it (then) led to Hitler taking over Europe, influenced him to change the way he approached therapy. Perls became known as the father of Gestalt Therapy. Though he technically was not the first to use it, he was one of its strongest proponents and and most successful practitioners. Gestalt was an experiential therapy that focused on fostering access to subconscious emotions by encouraging role-playing and interactive dialog. The process requires the therapist to use an indirect method of questioning and prompting in order to read people's responses for clues that will bring to light their own subconscious solutions to their problems.

While Perls concentrated on individual therapy sessions, another pioneer in the self-awareness movement, Werner Erhard, had just parted ways with self-awareness cohort L. Ron Hubbard, in order to form a group-focused sensitivity training he called EST (while Hubbard went on to establish "Dianetics" and his Church of Scientology). EST (or "est" as its practioners spell it) is short for "Erhard Seminar Training." In the 1960s, Erhard became an avid self-awareness proponent, devouring a range of human potential movements and Eastern disciplines. As the story goes, the est training came to Erhard one day on a crowded freeway when he "got it" -- "the awareness he was not his emotions and beliefs and intellect. Rather he was the creator and the source of his experience." (Krasnow) The est seminars are most known for their quirks, such as dissallowing participants from leaving the seminar room to, for example, use the bathroom or get a drink of water, and these aspects have led to speculation that the seminars are more cultish than therapeutic. Nevertheless, thousands of est experiencers attest to significant transformations of thinking (along the lines of "got it") about their problems and interpersonal relationships, and it cannot be denied that Erhard's contribution to the self-awareness movement is significant and long-lasting: his seminar jargon is where we get the notion of "personal space," as it was in est seminars that the term was first used:

"[Now] In the daily newspapers, you find people talking about 'space' and today everyone knows what that means. In the last few months, there have been four major business books talking about 'transformation.' There's no question that a lot of the principles that we developed in our work in the '70s have found their way into the mainstream." (Erhard, quoted by Kraskow)

Another lesser, but still significant, contributor to the movement are the sensitivity trainings offered under the umbrella of a corporation called "Lifespring, Inc." Lifespring has always been described in the same context as est, but there are a few significant differences that reveal the subtle bend towards mediation as a legitimate forum for personal "enlightenment" rather than as a vehicle for business negotiation, strictly for the corporate set.

Lifespring was founded in 1974 by John P. Hanley, Sr., who, not surprisingly, was once affiliated with Werner Erhard in the 1960s, but who also broke away to form his own personal vision of what self-awareness should look like. Lifespring professes on its website to offer "transformation workshops in personal effectiveness and personal growth, using an experiential, or participatory, learning model," according to its mission statement. (Lifespring) What differentiates Lifespring from est is so subtle in the process that many miss it. While est concentrates on changing the way people experience themselves, Lifespring concentrates on how people experience each other. (1) Though in an initial observation these two trainings might look very similar and, indeed, have much in common (they both have that "no going to the bathroom during the training" thing goin' on), the subtleties of difference in approach are critical to an understanding of how a thing like Transformative Mediation could easily rise out of the ashes of the self-awareness movement.

With an emphasis on how we experience each other, issues of personal power and responsibility naturally arise. And it is in Transformative Mediation, as opposed to traditional problem-solving models, where the focus is directed on empowering the relationship between people rather than simply the individuals themselves (as apart from any relationship).

Transformative Mediation

It is clear now how the Transformative Mediation Model has roots in the self-awareness movement of the 1970s, with seminars like est and Lifespring paving the way through practical applications (however suspect) of consciousness-raising experiments of the 1960s. The term and approaches practiced in these "sensitivity trainings" have trickled down to applications in mediation, and are now most widely disseminated through the 1994 publication of Baruch Bush & Joe Folger's book, The Promise of Mediation. Why is the process only being realized now? Where did it go in the 1980s? The answer to that may be in the 1980s backlash against "touchy-feely" therapy and "ME generation" politics. Critics then said that one of the most annoying outcomes of the self-awareness movement was the creation of problems that previously did not exist. They accuse the movement of brainwashing people into believing that our culture has toxic people (with toxic minds, toxic intentions, toxic relationships, etc.), or in people who are doormats, codependent, control freaks, or who actually "love too much." The self-help gurus say there are people who are emotionally bankrupt, spiritually immature, success-starved, and who are either addicted or obsessed with love, drugs, alcohol, spending, gambling, violence, bad relationships, sex, work, food, neatness, or pornography. The critics say it's enough to make you want to avoid getting to know anyone at all:

"If you believe the self-help gurus, we are, in short, a mess. A nation of walking wounded, held together by paper clips and rubberbands. My advice? Enough already. Tell your inner-child to stick a sock in it and move on!" (Frank)

Despite the backlash, people still found themselves wondering how they got into the interpersonal "messes" they were in, and more importantly, how to get out of them. It is no mere coincidence that the mediation movement gained a significant momentum in the early 1990s, when people were in search of solutions for their conflicts but were no longer entirely trusting of the self-awareness gurus of the past. Enter: Bush & Folger and the Transformative Mediation Model.

Bush & Folger contrast two primary approaches to mediation: problem-solving and transformative. The goal of problem-solving mediation is to reach a mutually acceptable settlement of the immediate dispute. The approach in this mediation is direct: The mediators control the substance of the discussion as well as the process itself (which was a popular way of dealing with conflict in the 1980s, because it precluded any "touchy-feely" quality of the actual proceedings). The mediators focus on areas of consensus and actual issues that have the most likelihood of being resolved, while avoiding areas of disagreement where consensus is less likely. Although the disputants have the last word on what the solution is, problem-solving mediators often play a major part in creating settlement terms and mutual agreements that are capable of being acted upon.

Just as the self-awareness movement in the 1970s concentrated on helping people realize their inner power over their own self-perception rather than on looking for character flaws to "fix," the transformative approach to mediation focuses on the empowerment and mutual recognition of the worth in themselves and others, rather than resolution of the immediate problem. Transformative mediators say that power and responsibility are the issues in a conflict, not settlement or compromise.

Empowerment, according to Bush & Folger, means that the parties define their own issues and seek solutions on their own. The mediator takes an indirect approach, reflecting back positively and in terms of empowerment and recognition what the parties are defining as their issues and solutions. This approach, according to Bush & Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, and puts responsibility for all outcomes squarely on the disputants. By seeking recognition rather than mere tolerance, the parties understand the other person's point of view--to understand (rather than simply tolerate, as may be acceptable in a settlement-driven mediation) how they define the problem and why they seek the solution that they do. There is no pressure toward an agreement - the parties may not agree on an outcome but hopefully will feel more clear on what the conflict is about in the first place.

The hope is that empowerment and recognition will pave the way for a mutually agreeable solution, but that is only a secondary effect. The primary goal of Transformative Mediation is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more clear view.

Assumptions about Human Behavior in the Transformative Approach

First, why do we need to know what the assumptions are? Will knowing the assumptions make the mediation more successful? Does it matter whether or not we start from a theoretical model of mediation, versus just plunging right into applications of what "feels right," based on years of experience?

Assumptions make up the base of every theory of anything, and even when we're not looking at what the theory is behind our own actions, we are always driven by it nonetheless. If you say, "I do not live my life according to theories," then you obviously have a theory about how you live your life (i.e. "The Theory of Life without Theories.") Whether you like it or not, your actions are implicated in cultural traditions that are based on - surprise - theories. For instance, the stand "I do not live my life by theories" is implicated in a culture that holds individualism as supreme, and the Supremacy of Individualism is a theory.(2)

That covers why we can't excuse anything we do as purely experientially-based and not theory-driven. But why do we need to always be aware of these theories of what we do, if what we're doing is working anyway? The answer to that lies in understanding the significance of assumptions.

If we deconstruct "what we do" in order to extract the theory (or theories) at work, we find that what holds up the theories are some very basic and very powerful assumptions about human behavior (in the case of theories of conflict resolution or theories of interpersonal interaction.) In these basic assumptions are clues to bias. And it is bias that can eventually sabotage a delicate mediation, especially of the transformative kind.

Uncovering bias is critical to successful Transformative Mediation. In fact, it could be argued that the process of transformation itself is a process of bringing to light the various biases that blind us to "what is really going on." What Erhard calls "got it" is that moment (aha!) when you realize what assumptions are driving you to behave the way you do or see the world the way you see it or, more simply, to misunderstand the conflict you're having with another person. Uncovering biases leads to empowerment.

"Empowerment" is used by Bush & Folger in a way that differs from common usage. It does not mean power-balancing or redistribution, but rather, increasing the skills of both sides to make better decisions for themselves. Specifically, Bush & Folger use the term "empowerment" to mean "The restoration to individuals of a sense of their own value and strength and their own capacity to handle life's problems." (Folger & Bush, p. 2) They further explain that through empowerment, disputants gain "greater clarity about their goals, resources, options, and preferences" and that they use this information to make their own "clear and deliberate decisions." (Folger & Bush, p. 264)

Some assumptions in this theory are obvious: that people want more power over their lives; that being clear about authentic wants and desires makes one more powerful; and that "value" and "strength" are rewards for having this power. Some assumptions are not so obvious: that power is a thing that is "have-able"; that power is a highly-prized thing; that it is never okay for there to be power imbalances; that people are able to "sense" their own value and strength; that "strength" is a highly-prized thing; and that once you have power (i.e. value+strength), all will be clear.

There are other assumptions in this model (the list could be endless, but this is not a philosophy paper), but the few I have mentioned should make it obvious where some key biases are. The assumption that power (personal or otherwise) is the be-all, end-all of everything we want out of life, can be argued as a bias towards an aggressive view of the world (i.e. power is good, passivity is bad). (3) The assumption that "increasing" skills gives one more "value" and "strength", first assumes that thinking and "sensing" skills can be incrementally measured on a scale of lesser to greater; and secondly, that "value" and "strength" are things to "have" (read: property). An overall assumption one could extract from the language of this theory is that feelings and traits are collectable in the same way things are collectable, and the more you have of the "right" kind of thing, the better off you are. None of these deep-layer assumptions are in themselves indicative of a significant bias, but collectively they do lean towards a bias of Power as Capital and Capital as Power - a very basic tenet of Machievellian Capitalism. Because the process of Transformative Mediation is dependent on the mediator providing indirect feedback, it would be wise for the mediator to be aware of these indirect but very basic assumptions playing on what may be only a subconscious (subliminal) level of perception, but may be influencing what is happening in the mediation itself. Add to this mix an intercultural element, and it is easy to see how badly things can go wrong. This is what makes knowing the theory (and its assumptions) behind what you're doing so important.

Implications for a Transformative Approach in Victim-Offender Mediation

Transformative Mediation didn't start out as a strictly victim-offender based model, but it could be argued that victim-offender mediations are a vital resource for discovering the finer elements of the Transformative Mediation Model. Here is an example of elements of Gestalt Therapy at work in mediation, and how creative direction of these subtleties make for unique and striking transformations:

Perhaps the most moving result of this mediation [between victims and the juvenile offenders who threw rocks down at cars from a freeway overpass] was the connection that developed, before the eyes of everyone in the room, between one of the offenders (who had grown up without a father) and the man who had caught him at the scene of the offense. By the end of the mediation, they had agreed that the man would become the offender's unofficial "big brother" ... [The man said to his offender:] "I know who you are - you're me, and I'm you, looking back at you in the mirror." He talked about his experience as a juvenile offender, his drug and alcohol recovery and about turning his life around. He then shared his belief that God had placed him at the scene of this offense for the sake of these three boys. (Price)

In these delicate victim-offender interactions it is clear how important it is that the mediator is acutely attentive to the subtle biases that are bound to come through while we are still in discovery of the assumptions upon which we practice the art of mediation. Had assumptions about "victims" and "offenders" been taken for granted in this example, the mediator may not have seen the opportunity to realize the connection between participants in this new way, and would not have indirectly (but quite consciously) fostered the relationship that was blooming.

That opportunity may have been missed because we have assumptions about the role of power in the Transformative Mediation Model, which are made clear when contrasted with the actualities of a victim-offender mediation. The victim-offender context differs in some fundamental ways, requiring some differences in training and mediation procedures: (Price, 1996)

- It is usually (but not always) between total strangers.

- There are usually major power imbalances which are inherent and appropriate to the victim-offender relationship, i.e., a wronged victim and a wrong-doer; generational power imbalances are common, i.e., juvenile offender and adult victim. [emphasis mine]

- Relationship-based, separate, preliminary mediator meetings with victim and offender are the backbone of the process, to establish trust and safety, explain the process, answer the participants' questions and assist them in preparing for the face-to-face encounter. This is in contrast to the predominant civil model, which tends to discourage any mediator contact with the participants separately, in order to prevent the formation of alliances with the mediator which might compromise the mediator's neutrality.

- There is a differing model of neutrality, in which the mediator respects the individuals, while acknowledging that a wrong was committed and structuring a process toward its restoration.

- In most (but not all) cases, although we employ the tools of mediation, there may be no dispute to resolve, no conflict to mediate, no disputants, as we understand them in the problem-solving mediation model. [emphasis mine]

- In victim-offender mediation at its best, the focus is upon dialogue, understanding, empathy and healing, rather than being driven by goals of overt empowerment, settlement, or restitution.

There are enough differences in the proceedings and goals of a victim-offender mediation to merit a look at what theory or theories premise the expected outcome. Clearly there is influence from the Transformative Model as described by Folger & Bush, but there also seems to be other influences. The fact that there "may be no dispute to resolve" puts this type of mediation much closer to therapy than any other model of mediation. With healing and a restored sense of good feeling about the world as key goals, it would seem that the role of the mediator is more direct than in a non-criminal type of Transformative Mediation. There is also a more obvious subtext of a counselor-client relationship.

It is interesting to note that this closeness to a therapeutic model of mediation most closely represents the models experimented with in the beginning of the self-awareness movement, when it became clear that it was necessary to raise our consciousness above mundane levels of perception. In this way, victim-offender mediation can be a rich and resourceful "consciousness-raising" force in the development of core conflict resolution theories that focus on transformative goals.

Notes

(1) My knowledge of these differences and commonalities of the two sensitivity trainings are strictly based on personal experience - I was active in both the est and Lifespring trainings in the 1970s and am now in the unique and fortunate position to look at them both in retrospect - a much more objective view than if I were still active in either, which I am not.

(2) "The Theory of the Supremacy of Individualism" is more commonly known as The U.S. Constitution.

(3) Although I had first planned to make this paper strictly about this particular bias, it proved at the onset to be an all-consuming task and one that deserved much more study and critical analysis than this paper (or this class, for that matter) calls for. The "patriarchal bias in how we measure success in conflict resolution" paper will have to wait for another day.)

References

Folger & Bush, 1994. The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (The Jossey-Bass Conflict Resolution Series). 1994, Jossey-Bass.

Frank, P.L., "The Self-Help Rage." Mindjack Magazine, May 11, 1998.

Krasnow, Iris. "Transformation of est Founder Werner Erhard." Los Angeles Times, December 2, 1988.

Lifespring, Inc., http://www.lifespringinc.com/.

Price, Marty, J.D. "Restorative Justice for Juvenile Delinquency: The Case of the Interstate 205 Rock-Throwers." Victim-Offender Reconciliation Program (VORP) Information and Resource Center: Articles. http://www.vorp.com/articles/i205.html.

Price, Marty, J.D. (1996). "Victim-Offender Mediation: The State of the Art." VOMA Quarterly. Vol. 7, No. 3: Fall-Winter 1996.

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