Summary of

Directing and Administrating a Mediation Program: The Transformative Approach

By Janice M. Fleischer

This Article Summary written by: Tanya Glaser, Conflict Research Consortium

Citation: Janice M. Fleischer, "Directing and Administrating a Mediation Program: The Transformative Approach," Mediation Quarterly, 13:4 (Summer 1996) pp.295-304.

Fleischer describes the development of the Pro Se Family Mediation Project, a project designed to emphasize transformative mediation. The Pro Se Mediation Project provides court- ordered mediation services to middle income divorcing couples on a sliding fee scale. The Project was developed in Florida, in compliance with Florida state law.

General Comments

Fleischer observes that the court system is currently overburdened and inadequate, particularly regarding family law. Moreover, many lawyers tend to escalate or prolong conflict, either as a result of the economic incentive of fees, or simply as a result of the adversarial approach. For these reasons, mediation has come to be seen as an attractive alternative to litigation. In Fleischer's opinion, mediation should not be thought of as an alternative to adjudication, but rather as the primary method of resolving conflict.

The practice and understanding of mediation is still evolving. Folger and Bush's account of transformative mediation is preliminary by their own admission. Fleischer sees transformative mediation as a particularly promising step in that evolution. She is concerned that critics of the transformative approach are caught up on the term, "transformative." Instead Fleischer urges the reader to "not get tangled up in words but rather look at the concepts" of empowerment and recognition.[p. 296] Toward this end, Fleischer describes how the transformative approach to mediation was instituted in an experimental family mediation program.

The Project

(For a more thorough description of the hallmarks of transformative practice, see the summary of Folger and Bush's essay, "Transformative Mediation and Third-Party Intervention," at this website)

In keeping with Folger and Bush's sixth hallmark of transformative practice, the Project placed no time restrictions on either the parties or the mediators. Transformative practice assumes that the parties and mediators are better able to acknowledge and explore their concerns in the absence of pressing time constraints. However, the mediators did charge an hourly fee, based on a sliding scale.

The Project mediators were required to attend two training sessions which "emphasized the transformative approach by requiring the mediator to empower parties through the development of self-determination and recognition."[p. 299] One of the first things that this training emphasized was the importance of allowing the expression of emotion and of exploring past events. This reflects Folger and Bush's fifth and eighth hallmarks: emotions can reveal important facts, and past events may have present implications.

Project training also emphasized the importance of letting the parties develop and draft their own agreement. The mediators were instructed not to suggest solutions or even phrasing. In accordance with the hallmarks, mediators were urged to remain non-judgmental about the agreement, and optimistic about the parties intentions and capacities.

The training addressed ethics at some length. Florida mediation law mandates consensual decision-making, and emphasizes parties' self-determination. Training materials instructed the mediators that "settlement was not their goal; party involvement and satisfaction with the mediation sessions and session accomplishments (however small) were the goal."[p. 300] Mediators were reassured that, in general, their ethical problems would be minimized if they left responsibility for outcomes with the parties. This reflects the second hallmark of transformative practice.

Once in practice, the mediators limited themselves to explaining the consequences of refusing to participate in court-ordered mediation, and to explaining how disempowering the litigation process was. Responsibility for participating in the mediation process was thus placed squarely with the parties.

The introductory materials provided to the parties prior to mediation reinforced this emphasis on party responsibility and empowerment. The materials described the choices available to the parties, and the various consequences of each choice. The materials encouraged the parties to evaluate their own needs, and make their own choices. Mediators were described as assistants in this process.

Not only were the mediators encouraged to use the transformative approach in their sessions, the Project itself took a transformative approach toward the mediators. Mediators were given full responsibility for their cases. Individuality, independence, and innovation were encouraged. Their feedback was encouraged, and suggestions were acknowledged and implemented where possible.

Conclusions

While a formal evaluation of this test project is not yet available, Fleischer reports that "preliminary findings reveal that for those parties who appeared for their mediation sessions, in most cases a full marital settlement was reached."[303] Findings in this project will be limited by low case numbers, reluctance of parties to show up for mediation, and a few project mediators who retained their goal of producing settlements. Mediators who utilized the transformative approach generally expressed enthusiasm for it.