“Hi Jane, great to meet you,” I said to my co-mediator.  We were paired up as part of a volunteer program connected to family court.  We’d been asked to help with a parenting dispute between a never-married couple involving their 2 year-old son.  We met in a conference room across the lobby from the courtroom.  The parents had already arrived and I had already had brief introductory conversations with each of them.    

“Yes, good to meet you, finally, Dan, ” said Jane.

“Would you like to check-in for a minute before we start?” I asked.

“Sure, ” she said.  As we stepped away from the conference room she said, “You know this is my first mediation in this program, so would you like to take the lead?”

I said, “well, there’s nothing so special about this program, BUT, as you may know I’m into the transformative approach, so maybe it would be interesting for you to get a chance to see how that works.”

“Ok, yeah, that sounds fine, I’ll let you take the lead.”

“But of course, you feel free to contribute in any way you want, as well.”

Until recently, it had been about 10 years since I’d been paired with a co-mediator whom I didn’t choose.  Back then, I often felt that my co-mediators were mistreating the clients -and I had felt almost powerless to stop it.  I didn’t have the language to explain to my co-mediator why I thought it was counterproductive for the mediator to dominate the conversation, frequently re-direct it and frequently point out to the clients inconsistencies in what they were saying.  When settlements happened, I felt they came from the temporary suppression of the conflict, as opposed to any real progress in it.

More recently, I’ve felt confident enough to suggest to co-mediators that they step back and see what they thought of my purely supportive approach.

Jane and I sat down with the clients..  I briefly went through an “Agreement to Mediate” form with them.  Then I explained that we were there to support them in having whatever conversation they wanted to have, and then I said “how would you like to start?”

Dad said, “Well, I want three days”.

Mom said, “No, that’s too much.”

Then Jane jumped in and said, “So what’s your current parenting schedule?”  They answered and she asked several follow-up questions, clarifying the exact times that the child was being exchanged currently.

I said, “Jane, can I talk to you for a second.  I just want to clarify something.”

Jane said, “Ok.”

And I said to the clients, “Pardon us – this is our first time working together – I just want to clear up something.”

We stepped out of the room and Jane said “Sorry, do you want me to back off?”

And I said, “No problem, I just think you’ll be amazed at how little of that we have to do.”

Jane said, “O.k., fine, I’ll just pretty much observe.”

Over the next hour, Jane saw what happens when the mediators let go of control of the conversation, but purely support the clients in their own choices about what to talk about and how to do it.  Mom and Dad’s conversation included Mom describing her 12 hours of labor without Dad being there, how Dad had originally wanted to have a baby with her but then dumped her, and how Dad’s new wife had told Mom that new wife didn’t like any of Dad’s kids that weren’t new wife’s.  Dad shared his perspective on those things and others.  The question of child support came up with Mom saying she knows Dad makes a lot of money in cash, but doesn’t report it.  Dad explained that actually, his situation had changed since they were together and he’s now earning a lot less.  In one poignant moment, Mom said that she never would have brought this child into the world if she had known that Dad was going to dump her, but that now this child is the most important thing in her life.  Mom also said that she wants the child to have Dad in his life, but she’s worried about how new wife treats the child.  Also, within that next hour, they agreed on a parenting schedule, that they would share joint legal custody and that Mom would take sole physical custody.

As Jane and I had coffee afterwards, she acknowledged that this conversation had led to settlement far more quickly than the mediations in which the mediators lead the way.  She speculated that this approach allowed the clients to talk about and get past certain issues, which then allowed them to naturally come around to settling the more mundane, concrete issues.  I shared that for me, giving Mom and Dad the opportunity to have this sort of conversation was more important than whether they settled the legal issues, but that sure, it’s nice that that worked out as well.

Jane also said that she doesn’t believe in any approach that’s too extreme – that there’s room for all different approaches.  I said that for me, there are important decisions that mediators need to make about what they will and won’t do.  I suggested the analogy of parenting – many parents absolutely refuse to spank their children – a middle path doesn’t make sense to them on that issue – it’s an absolute.  Just as some parents don’t spank, I as a mediator don’t usurp any of my clients’ decision-making, including their decisions about the process, itself.

I hope that Jane understood that what she saw was not an extreme approach, but one that arises from clear principles and that usually leads to meaningful, lasting progress.

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By Dan Simon

Dan Simon teaches and practices transformative mediation in St. Paul, MN. He also writes the blog at The Institute for the Study of Conflict Transformation.