The Goal Focused Way

The art of mediation is constantly evolving, adapting to changes in society, and integrating ideas from negotiation theory, legal practice, as well as other disciplines. Transformative Education emerged from the environmental movement into the academic field of Adult Education where it has been accepted into the prevailing adult education models and further developed. The basic precept of transformational learning is that, in order to be truly useful, education should do more than impart knowledge and skills… It should also transform the way in which learners observe and interact with the world around them. Since mediation already involves assisting people to reach agreement on difficult issues, the transformative model has been adapted to the practice of mediation by forward-thinking mediators and mediation educators. For the most part, this should be seen as positive development – but not always.

One of the reasons that I was prompted to develop The Goal Focused Way is that I felt that the prevailing mediation and negotiation model; Interest-Based, Principled Negotiation, was inadequate when one or more parties simply refused to engage with the process. While the interest-based model has mechanisms to deal with this possibility, I felt that these methods presented problems when “walking away”, or one-sided principled bargaining, or subtle (and unsubtle) methods were employed to bring the other party around. Particularly when the stakes are very high, and the parties are very antagonistic and/or unprincipled, the principled negotiating model fails completely. I have in my library a book by William Ury, one of the founders of Principled Negotiation at Harvard University, titled “The Third Side: Why We Fight and How We Can Stop “. It is an interesting book. But people are still fighting and nations are still at war. Sometimes the pie just can’t be shared. Sometimes losing is not an option. Sometimes winning is the only acceptable option, regardless of the impact on other parties. This can result in tragic consequences and is often exceptionally unfortunate… but also unavoidable.

In some cases the transformational mediation model can make a bad situation worse. One might (and should) ask, “how is it possible that a progressive model, designed from its very outset to build bridges, make peace, and make the world a better place, could possibly make a difficult situation even worse than it already is”? I can think of two examples and there are probably others.

Example 1)
Nearly every experience that human beings have can be transformative in one way or another, but in general terms, transformative education and mediation is going to take longer than less transformative, more instrumental mediation modes. In some cases this is a good thing, in some cases it does not matter, but in cases where clients are paying substantial amounts of money for professional services, spending more time than is necessary to reach a settlement is not acceptable. Lawyers can charge upwards of $400 per hour, mediators can charge as much as $3000 per day, clients are taking time away from their work and businesses. Sometimes the best interests of clients are best served by simply reaching a quick, fair agreement, and moving on.

Example 2)
Transformative Mediation is usually presented as being much more effective at reaching sustainable agreements in which the parties feel strongly vested. The process seems inherently fair and balanced. Usually I thing both of these beliefs are well-founded. But just as the Principled Negotiation model can fail miserably when one or more of the parties refuse to play ball, the transformative model can also fail to achieve agreements that are balanced or fair. The easiest way for me to demonstrate this is through a hypothetical example:

After 25 years of employment as a mid-level manager at the same company “John” is terminated without cause, and provided with 12 weeks severance pay by his US based employer. The employer believes that this is very fair given that there is an economic downtown and the amount is the maximum payable in the employer’s home state. John believes that the amount is inadequate, retains a lawyer, and the dispute is eventually mediated by a mediator using a transformative model. John’s lawyer quickly brings the employer’s offer up to the statutory minimum, but after considerable time spent in mediation John insists that his counsel accept this amount and refuse to ask for a penny more. John has been “transformed”! He now “sees the light”! Until this mediation he had no idea what a burden he had become to his employer, or how generous his employer had been to him over the years despite his poor performance, or how hard the economic downturn had been on his employer. He feels awful. He is no longer interested in a settlement that would make things any more difficult on his employer. He is simply pleased that he now is walking away with the statutory minimum. He believes it is more than fair! Everyone has been transformed. Everyone is happy. …And Hypothetical John was just screwed.

Does this mean that Transformational Mediation is a “bad idea”? Certainly not. I believe that Transformative Education is the highest possible ideal and that all mediators and negotiators should strive for opportunities to engage clients in a transformational manner whenever it makes sense to do so. Just remember that it is not the only path to sustainability, nor is it always the best path.