Law Times

lAw Times • April 4, 2011 FOCUS PAGE 9 Advocates call for new approach to ADR Are transformative and narrative methods the better way? BY JUDY VAN RHIJN For Law Times mainstream, but there are those who wish to educate the fi eld on another approach. Transfor- mative and narrative mediation are two distinct but similar ap- proaches that attempt to increase objectivity by distancing the complainants from the problem in the hope that there will be long-term improvements in the relationship between them. Daryl Landau, president of Common Ground Organiza- tional Solutions, says the ap- proaches come from diff erent beginnings but have much in common. "Th ey both distinguish themselves as not being problem solving or interest-based. Th ey are not focused on the prime goal of achieving settlement but of improving relationships." Th e book Th e Promise of T Mediation: Th e Transformative Approach to Confl ict by Robert Bush and Joseph Folger articu- lated the idea of transformative mediation. Th e main focus is on building understanding or recog- nition between the parties. Bush and Folger describe the hallmark of recognition as "letting go — however briefl y or partially — of one's focus on self and becom- ing interested in the perspective of the other party as such, con- cerned about the situation of the other as a fellow human being, not as an instrument for fulfi ll- ing one's own needs." According to the authors, people give recognition when they see, for example, that what they had taken as an intentional insult was the unpremeditated product of understandable frus- tration or merely a diff erent mode of communication. Th ey might also see that the other par- ty's actions were an understand- able attempt to deal with real and severe pressures due to the circumstances. Th e aim of the mediation is to off er the parties the opportunity to reinterpret statements or past behaviours in a more positive light. Narrative mediation grew out of narrative therapy for indi- viduals. It primarily looks at how people make meaning from their experiences. In Narrative Media- tion: A New Approach to Confl ict Resolution by John Winslade and Gerald Monk, the authors explain that people develop a story about what has happened and continue to act into a so- cial situation out of the version they've created. "Facts, from this perspective, are simply stories that are generally accepted," they wrote. "From time to time, these stories lead to dramatically op- posed readings of events." As a result, they say one of the major tasks of a mediator involves undermining the rigid and negative motivations the confl icted parties ascribe to each other. "People do act on he interest-based form of mediation has be- come widespread and stories, seeing who the villains and victims are," Landau notes. "Th e mediator looks for op- portunities to shake that story with information that is an ex- ception to their view. Th ey try to highlight the exceptions and bring forth a diff erent story that is not problem saturated. Th ey then fi nd a diff erent way forward that is more positive." One technique is to external- ize the problem by separating it from the person. "Try and per- sonify the problem in some way," Landau says. "Th e problem is an entity that has its own will. Th e confl ict stands between the people, rather than something that is inside themselves. Blame the confl ict, not the person. Talk about the distrust between people as opposed to who's trust- worthy or talk about the ways a miscommunication is tricking us into behaving in a certain way, trying to control us in the confl ict. Th en together, the par- ties can face up against the mis- communication. Th e constant goal of the mediator is to keep the problem as the problem." A pure narrative or transfor- mative approach probably works best when there's a long-term re- lationship that's very important to the parties and they're will- ing and able to refl ect. Landau uses these approaches in marital breakdown, estate, parenting, and other kinds of family dis- putes as well as neighbourhood or workplace matters. "Th ese are great areas where ongoing relationships are more critical than the presenting problems. And it's often the case, with the exception of signifi cant fi nancial issues or complex substantive is- sues, that the presenting prob- lems would not be diffi cult for people to resolve if they felt less hostile to each other. So reduce the hostility and then empower them to solve the rest." Landau fi nds the technique works better on an individual basis. "You might have to sepa- rate the parties and proceed more one on one." Rick Russell, a lawyer and mediator at Agree Dispute Res- olution, agrees. "Transforming relationships or changing peo- ple's views of one another takes one-on-one confl ict coaching with time to refl ect in between. With that in mind, mediators need to design the mediation process with multiple, short- er, and often emotionally in- tense sessions, not the usual four-to-eight-hour transac- tional model." Narrative and transfor- mative techniques can apply to virtually any mediation if people have the training to use them. "Th e mediator needs to consider if they have the req- uisite knowledge and skills," says Russell. "Many mediators of commercial cases have not taken academic or skills-based training in relationship ca- pacity building and therefore may not be competent in this area where the techniques and goals are diff erent." For his part, Landau be- lieves it's best if mediators understand a number of ap- proaches and try to integrate them into their techniques. "I would like to see all mediators have these skills. So far, the bulk of mediators are not integrating these schools of thought. Th ey would be benefi cial in some- thing like estate law. If there is an opportunity for recogni- tion or to change the story, an Transforming relationships takes one- on-one conflict coaching with time to reflect, says Rick Russell. interest-based mediator may not have the skills to exploit it. In the problem-solving approach, the parties may make a deal but never speak again." One criticism of these ap- proaches is that they reject problem solving in favour of working on the relationship when in fact most parties come to a mediation with the expectation of reaching a settlement. But can a me- diator impose a relationship- building agenda on the par- ties? "Th at's a tough question," Landau responds. "It's not harmful and can be helpful if it encourages them to under- stand each other. It's in their long-term interests and may even lead to a settlement." Russell is more cautious. "It's important to keep the clients' interests in mind. Do they want their relationship transformed or do they want a deal to end the litigation? Most often, in legal disputes, it is the latter. Many of the concepts and techniques can be borrowed and used in transactional applications but always with reference to the clients' goals. Otherwise, it can be presumptuous and even patronizing to hijack parties who want a deal into a pro- cess which may actually reduce rather than enhance the likeli- hood of a resolution." Untitled-3 1www.lawtimesnews.com 3/29/11 10:24:22 AM

• Cover
• Helping Hands
• Handcuffed Courts
• Focus On ADR/Mediation