Because transformative mediation is so helpful at clearing up emotional, personal disputes, some people have assumed that it’s not the right approach when the dispute is all about money. My own experience mediating business disputes and personal injury cases suggests otherwise. I’ve noticed three phenomena that lead potential participants to believe mistakenly that transformative mediation is not appropriate.
1) This case is simply about the bottom line - it’s not about anyone feeling weak and self-absorbed - it’s just about both sides trying to get the best deal. If this analysis of the case is accurate (it often isn’t, but let’s assume for a moment that it’s accurate in a given case), here’s why transformative mediation makes sense. Transformative mediation gives both sides maximum opportunity to gain as much information as possible, so they’re able to make the best decisions about what settlements to offer, what to accept, and what to reject. The questions that transformative mediation excels at answering include: How motivated is the other side to keep fighting? What is the best deal that the other side is willing to accept at this point? Now that I have a better understanding of the other side, how motivated am I to keep fighting? How do we feel about the strength of our legal arguments, when the lawyers have the opportunity to debate them in front of us? Having had a chance to talk directly to the other party, how do we feel about how strong they’ll be as a witness?
An example of maximum information exchange happened when I saw an insurance adjuster apparently come clean about just how much he had been authorized to offer. He went on to convincingly explain why he wasn’t willing to offer up to the full amount of that authority - his disclosure seemed very helpful to everyone, including his own case - and I don’t think it could have happened without my transformative facilitation of the face-to-face conversation.
These are exactly the bits of information that help parties make better decisions about settlement, but that traditional mediation does not provide.
2) There ARE a lot of reasons these parties are fighting that go beyond the bottom line. One example of possible motives that go beyond the bottom line in a certain case could be defendants fighting now for the purpose of deterring future claims from future plaintiffs, i.e, maybe if they play hardball with this plaintiff, future plaintiffs won’t bother. (Incidentally, this strategy doesn’t seem to work - I’ve heard too many anecdotes of defendants who use this strategy but continue to get sued). Even if that is the defendant’s motivation, transformative mediation makes sense. It gives defendants the chance to communicate that directly to the plaintiff in clear terms. When the defendant is sitting in a different room, simply offering low numbers, it’s hard for the plaintiff to know just what they’re up to. What could be the harm in the defendant getting to explain their thinking directly to the other side, so the plaintiff can use that information to help them make their decisions?
Since parties’ motivations are often not quite this simple, and since litigation and evaluative mediation tend to bring with them highly flawed communication between the parties, transformative mediation is very well-suited to allow for a more nuanced understanding of each other, and better decisions by both sides on what to do next.
3) The lawyers simply won’t be comfortable with the transformative approach. Mediators whom I’ve trained and who do commercial and personal injury mediation name this as the primary reason that they’re hesitant to incorporate transformative mediation into their practices. There are several reasons that lawyers are uncomfortable with an approach where the mediator sees his or her role as to support a conversation:
1) Fear that their client will say something that could be used against them later;
2) Fear that the conflict will escalate;
3) Fear that the lawyer will need to debate the opposing lawyer in front of the clients, which could be embarrassing if the other lawyer happens to be sharper.