Family law mediators may benefit divorcing parties who are mediating by applying the principles of transformative mediation in the mediation process.

Problem Solving Mediation vs. Transformative Mediation:

There are significant differences between problem solving mediation and transformative mediation. Transformative Mediation focuses on creating opportunities for moral growth. It involves a long-term process. Problem solving seeks a settlement of a specific dispute usually involving money or property (negotiable interests). Mediators are usually more directive in problem solving mediation situations. Discussion of the past is encouraged with transformative mediation and discouraged with problem solving mediation. Emotions are an integral part of the conflict process with transformative mediation. This is much less the case with problem solving mediation.
Therapy vs. Transformative Mediation:
While similar to therapy in focusing on the process, transformative mediation is more non-directive than therapy. Moreover, transformative mediators generally help with specific disputes, rather than issues of long-term mental health or family relationships.

Transformative Mediation is most appropriate for parties in ongoing relationships:

Transformative mediation is useful in many types of disputes where there will be an ongoing relationship between the parties, such as in employment situations, landlord and tenant relationships and as is highlighted in this article, in the context of divorce.

Transformative Mediation Explained:

The transformative mediation approach to conflict resolution was first described by Robert A. Baruch Bush and Joseph P. Folger in 1994 in The Promise of Mediation. In transformative mediation, mediators focus on empowering parties in conflict to resolve their dispute. It helps them recognize each other’s needs and interests. The process can transform the parties and their relationship by helping them obtain the skills they need to make constructive change. Transformative mediation in the context of divorce, can be most valuable in situations where parties will continue to interact with one another after their divorce is concluded, because they have children together or they continue to have financial ties to one another, such as due to existing support arrangements.

Transformative mediation recognizes that conflict is a critical predicament in human interaction. A toxic relationship between parties may undermine each party’s perception of themselves and the other party. This may cause each party to relate to the other party in destructive ways, such as by feeling more defenseless and becoming more self-centered. The negative dynamics often feed into each other as the parties interact in a vicious circle that intensifies each party’s feelings of powerlessness and self-centeredness.
Transformative Mediation Focuses on Empowerment and Recognition:
Transformative mediation recognizes that notwithstanding conflict’s potentially destructive impact on a relationship, people can change the quality of their interactions through empowerment and recognition.

Empowerment is the ability or movement towards being able to deliberate and/or make a decision in the conflict interaction. Empowerment means the decision making is in the hands of the parties. They dictate their level of involvement, the ground rules, the nature of what they are arguing about and how to resolve their dispute.

Recognition is the ability to hear the other party and/or start to hear their perspective in the conflict interaction. Recognition occurs when the parties achieve a greater understanding of one another. The mediator helps the parties delicately probe past events between them. The parties are asked a series of questions, such as how the parties view one another now, how they used to view one another and whether each party’s current actions are consistent with how they now view the other party.

As empowerment and recognition operate, a previously existing constructive interaction relationship between the parties can be revived. Transformative mediation places a higher emphasis on improving the interactions between the parties than on settlement of their dispute. By helping the parties identify opportunities for empowerment and recognition the mediator can move the parties to a paradigm of constructive interaction.

Reinterpretation and Reframing are used to create recognition between the parties:
The mediator uses reinterpretation and reframing to get each party to recognize the other party. Reinterpretation consists of discussing alternatives to explain past actions. If possible, the past actions are translated into more helpful terms. For example, a party may indicate they acted a certain way out of concern for something unrelated to a desire to cause the other party harm. If possible, a party may acknowledge how the other person could have interpreted what the party said or did in a negative way. The mediator uses reframing to try to have each party make their point in a more productive and more constructive way.
Reframing and reinterpretation are intended to show each party they are walking down a new path. This is a path committed to improving the relationship. The path emphasizes learning the other party’s concerns, sharing concerns, listening and problem solving.
Altering the parties’ perception of one another:
If the parties reach an impasse the mediator discusses and summarizes with the parties what their options are. If an impasse remains, the parties may nevertheless remind one another they do not have to think the worst of the other party. The parties are in fact encouraged to mention positive characteristics of one another.
The Transformative Mediation Process in Practice: A Step by Step Guide:
The step by step transformative mediation process differs from the standard mediation process by focusing on how the parties perceive one another and emphasizing the concepts of empowerment and recognition. Here is a step by step summary of the process:
Allow the Parties to Decide Whether to Participate: Both parties decide on their level of
involvement in the process. Nobody pressures the parties to participate or act against their wishes. More often than not, the parties participate in the process without the presence of attorneys.

Allow the Parties to Decide on the extent of their Commitment to Ground Rules: The parties agree on the ground rule of not interrupting one another. Adopting this ground rule shows a sign of respect and it aligns with the concept of active listening. It also gives the parties a
sense of what is entailed, behaviorally, in developing effective conflict resolution skills.

Probe Past Events to Elicit a Party’s Views of the Other Party: Each party takes turns talking about the other party’s past actions. The exploration of the parties’ history lays the groundwork for recognition by possibly allowing for some initial recognition by one party of the other (i.e.; by the party perhaps mentioning positive characteristics about the other party). Moreover, the statements about the parties’ history may reveal the kind of recognition each party may value or want from the other.

Summarize each party’s perceptions: Each party is offered the opportunity to acknowledge these perceptions in the presence of the other party. Each party may thereby give recognition to the other party.

Provide an Inclusive Summary of the Parties’ Concerns: The parties recap the discussion thus far in a way that fosters empowerment. This is done by staying true to where each of the parties have headed so far, by summarizing the issues without significantly reducing or reshaping them. This is also done by including the relationship concerns that have been raised.

Focus the Parties on Choices for Their Decision Making: The parties remind one another of the positive comments they had made about each other earlier. They then direct themselves for the moment toward consideration of options and decision making, regarding what they want to do about the situation. The parties clarify options, possibly creating a foundation on which further recognition can be built.

Offering Possible Reinterpretations of the Other Party’s Behavior to Evoke Recognition:
The parties discuss alternatives to explain their past actions. This gives each party the chance to evoke recognition by the party of the other party.

Allowing the Parties to Control the Discussion of Options: After allowing a party to give recognition to the other party by possibly reinterpreting the other party’s past actions, the parties may choose to back away if the party rejects the opportunities. Recognition is not forced. Instead, the parties address the question of what each party thinks his/her options may be at this point and they discuss the viability of these options. The parties decide whether and when to present their respective options.

Allowing Each Party Equal Control in Defining Options: Independent of how one party sees the other party’s options, the parties allow one another to define what he/she wants. Each party is allowed to define his/her options in their own way. The parties ask questions that allow each of them to consider the consequences of their decisions. This may involve asking how the case might fare in court.

The Parties Respond to the Opportunities for Recognition That Surfaced Earlier:The parties talk, highlighting the recognition the parties are choosing to give to each other. By probing about past events and by considering different explanations for past behavior the parties allow the possibility for recognition to percolate, leading to a point where the parties can now decide to raise again the questions about how they see each other and to listen and respond to each other in a more sympathetic and positive way.

Translating Between the Parties to Evoke Recognition: If the parties have gained considerably more sympathetic views of each other and cleared up several misunderstandings they have had about past events, the parties may then return to decision making about the underlying issues. If however, backsliding occurs due to the history and weight of old perceptions, then each party may give a summary translation of the party’s substantive positions for the other, framing them in a way that tries to make each party’s goals and reasons understandable to the other, in light of their new perceptions of each other.

Reframing the Parties’ Differences on Substantive Issues to Maintain Recognition: If during the discussion of substantive issues the parties hit a snag, the parties may again decide to translate and reframe their differences on substantive issues to help them avoid negative interpretations of each other’s motives and behavior. This recasting of differences offers the parties a chance to preserve and continue the recognition they had given each other and still engage in difficult bargaining over substantive issues.

Summarizing the Parties’ Tentative Agreement: As the parties discuss the terms they seem to be agreeing to, they check with one another so that they can make decisions clearly and deliberately and edit and reject one another’s summary. It is important for the parties to mention to one another the progress the parties have made not only on the substantive issues but also on how they see and understand each other.

Allowing Last Minute Concerns about Settlement to Surface: When last minute concerns arise the parties allow these to be addressed. One of the hallmarks of a transformative approach is the willingness to slow down and back up in response to concerns the parties raise rather than turn up the pressure and minimize concerns.

Encouraging One Another to Consider Alternative Options: If the tentative agreement starts to unravel the parties may raise other options that the parties had considered earlier.

Preserving Recognition in the Face of Impasse If the prospects for settlement dim, the parties may remind one another that they do not need to think the worst of one another and they do not need to revert to the most negative explanations of each other’s behavior. The goal here would be to remind one another of the recognition they have given each other and to encourage themselves to preserve it, even if they do not settle. They may ask what they have accomplished in the session: to clear up misunderstandings and restore a more sympathetic view of each other.

A Transformative Mediation Scenario:

Margaret and Alex married in August 2000 and separated in June 2017. They have two daughters, ages 12 and 14. The daughters live on a full-time basis with Margaret. They do not visit with or speak to Alex.

Margaret alleges that Alex was guilty of domestic violence during the parties’ marriage. Alex denies this. He was removed from the family home by a restraining order issued in 2018. This restraining order was dissolved shortly after it was issued. He asserts that the claims leading to the issuance of the restraining orders against him were false.

Margaret is 52 years old. She suffers from a potentially terminal condition (cancer) which was first diagnosed in 2017. Until now, she has been unable to engage in family-related discussions due to her treatments. Margaret has trouble focusing and remembering exact dates and figures, which she attributes to her treatments. Margaret did not work for 1 ½ years due to her health. She returned to work about 13 months ago and works as an administrator at a non-profit organization.

Alex is 50 years old and pays child support of $2,500 per month per a temporary order. Spousal support was temporarily set at zero. He works as a county employed laborer.

As the transformative mediation commences, the parties barely look at one another. When they do venture a glance, it is coupled with an angry scowl. They have their arms crossed in front of them. They refer to one another by their respective last names.

Margaret claims that Alex abandoned her and abandoned the children. She cries often and frequently mentions possibly not having long to live and wanting to see that the children are cared for in the event of her demise. She claims that Alex was an alcoholic, he still is an alcoholic and to make matters worse, he is involved in an extremist secretive religious sect.

Alex claims that Margaret has kept him from seeing the children and alienated him from them. He states that he was “kicked in the …” by Margaret via her phony residence exclusion order request, the parental alienation, and the false claims about his drinking and his religious practices.
Alex expresses his desire to see the children, he requests an apology for Margaret having sought a restraining order against him and he wants Margaret to recognize that he did not abandon the family because he continued to financially support the family following separation. Margaret wants Alex to acknowledge how she kept the family together in Alex’s absence, she wants Alex to address his alleged alcoholism and his alleged religious extremism, and she wants him to acknowledge his alleged abandonment of the family. Margaret expresses her concern that if Alex reengages with the children he may walk away again.
The parties probe past actions, including discussing whether there are alternative ways of viewing the other party’s past actions. The parties take turns describing one another’s feelings and attitudes. Margaret tells Alex that she was in emotional and physical pain and needed emotional support from Alex, who she contends, abandoned her and the family. Alex contends he did not abandon her and the family because he continued to pay the family bills. He adds that he had to deal with a lot himself at the time Margaret learned of her cancer and the marriage deteriorated.
Through the transformative mediation process the parties moved beyond the scowls and closed body poses. They recognized what had led each of them to act the way they had in the past, which laid the groundwork for resolving the issues confronting them. They implemented a visitation arrangement between Alex and the children involving incremental increases to his time with them as he rebuilt Margaret’s trust in him. Margaret acknowledged she acted in part out of anger and fear about her health when seeking restraining orders against Alex. Alex acknowledged he was not emotionally supportive of Margaret when she needed it. He offered Margaret more transparency into his religious pursuits and agreed to avoid consuming any alcohol while the children are in his care.
By probing past events and providing recognition to each other, the parties were able to move on to addressing the thorny issues of long-term support and property in a civil and constructive manner. They established a much more amicable relationship which bodes well for their future dealings with one another for years to come on issues relating to their children.
Transformative mediation generally requires more time than does traditional mediation. This may be due to the fact that transformative mediation typically requires addressing ongoing relationship related issues in addition to addressing the garden variety property and support issues found in a typical divorce case. However, the payoff makes it worth the devotion of additional time.
Transformative mediation can be an effective tool for avoiding the deleterious effects that may occur when parties suddenly experience vulnerability and self-centeredness arising from the high conflict situation they may have been thrust into due to the breakup of their marriage.

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