Quadra - Alternative Dispute Resolution

My Quadra carrello Scopri i costi di una procedura

Quadra opera dal 2003 come provider privato ADR (Alternative Dispute Resolution)
per la gestione e mediazione delle controversie e dei conflitti civili e commerciali

Quadra amministra procedure di mediazione, arbitrato ed expertise
e promuove la diffusione della cultura ADR svolgendo formazione di alto livello

20 febbraio 2013

Il futuro modello dominante di mediazione | Dal corrispondente ISCT Dan Simon (USA)

Parte 1:


I estimate it took me 5 years of trying until I fully embraced the transformative perspective.  I had started out mediating by assuming my job was to uncover underlying interests, then help both sides figure out how to get as much of what they wanted as possible, and help them accept that they couldn’t get everything they wanted.  When I started mediating, I saw hostility and distrust between the parties as impediments to a solution, but they didn’t hold much interest beyond that. Now that I see things from the transformative perspective, that hostility and distrust are where the action is. 
To help clarify this change of focus, I’ll walk through how we explore it in transformative mediation trainings.   In our basic mediation courses, we start by asking participants to think back to the worst conflict they’ve been involved in, to focus on the worst moment of that conflict, and to describe what was so bad about that worst moment. Common answers include that they felt powerless, out-of-control, overwhelmed, less competent than usual, as if they were talking to a brick wall, misunderstood, and shocked that the other person could act this way.

From there we distill those experiences down to their essences.  We say that many of the words used, such as powerless, out-of-control, overwhelmed, and less competent, can be understood as variations on a sense of relative “weakness”  – and we say that such concepts as brick wall, misunderstood, and shocked at the other’s behavior can be distilled down to “self-absorption”.  (Self-absorption is always hard for people to cop to – so we point out that when one is feeling weak and vulnerable it’s entirely understandable that one would be less able to empathize, less understanding, and less compassionate.  It’s natural that, compared to our usual state, we’re self-absorbed at those worst moments.).

Next we describe the vicious cycle that these experiences create within us.  We notice that in those worst conflict moments we don’t know what to do, so we focus intensely on that, as we focus on that, we remain less able to pay attention to or understand the other person, as we continue to deal with this person we don’t understand, we feel weaker than ever, and so on.  And when you add to the mix that the other person may be caught in the same vicious cycle, a vivid picture emerges of what we call the “Destructive Conflict Cycle”.  I suggest that we’re all familiar with examples of the Destructive Cycle in our own lives, and we’re aware of extreme examples in stories of litigation that costs far more than either side can hope to gain, in suicide bombings, and in murder-suicides.  In all of these stories, the desperate efforts to regain a sense of power can destroy both the other party and oneself.

From there we talk about what an improvement to that Destructive Cycle would look like.   We say that a sense of strength would be an improvement over a sense of weakness.  And, on the other side of the equation, the ability to be responsive to the other party would be an improvement over being self-absorbed (sometimes participants object, saying that when the other party is pure evil, responsiveness is not an improvement – to which we reply that, at the very least, it’s preferable to be able to deal with evil effectively, as opposed to in a way that only hurts ourselves – in extreme cases, responsiveness may mean clarity that we need to end our dealings with the other party – in other cases it may turn out that the other side wasn’t quite as evil as they seemed).   We call the movement from weakness to strength the Empowerment Shift; and we call the progress from self-absorption to responsiveness the Recognition Shift.

The next step in the training is to gain a deeper grasp of what empowerment shifts and recognition shifts look like.  Often by observing a transformative mediation demonstration, we see parties become calmer and clearer (Empowerment Shift) and we see them turn toward each other and genuinely listen (Recognition Shift).  We notice that Empowerment Shifts can manifest themselves in clearer articulation of needs, in a new idea emerging, or in focusing on a new topic that seems important.  We see that Recognition Shifts take the form of acknowledging some truth in the other party’s perspective, in offering suggestions that address the other party’s concerns, in expressing appreciation of the other party, and in proposing viable solutions.

Once we’ve become clear about what these shifts look like; and once we’ve gained confidence that these sorts of shifts can and do happen, we turn our attention to how a mediator can be most helpful in facilitating them.


Parte 2:


For many who study transformative mediation, it’s hard to focus on clients’ interaction (which, as discussed in Part I, is characterized by a sense of weakness and self-absorption in relation to each other)- we’re so accustomed to thinking ahead to possible solutions to their problem.  So transformative mediation trainings give participants opportunities to experience empowerment and recognition shifts themselves.  In one exercise, we have pairs of participants take turns talking to each other about a real life dilemma they’re facing.  We instruct the listening partner to help the talking partner gain clarity but without the listening partner being directive.  In 15 minutes of talking, the participants report that talking caused them to see their dilemma differently.  The dilemma was put in perspective, either it became less troubling, or the opposite, it became clearer just what a big deal the dilemma was.  Or sometimes the talker  realizes that they actually already know how to handle their dilemma.  Other times they realize that they had been focused on the wrong part of the problem and they get clearer about what aspect of it really matters.  Nearly always, they report some sort of progress.  That progress is an empowerment shift.

Training participants experience recognition shifts later in the training, when they role play a conflict scenario. When they play the role of a disputant, they notice that during the mediation they have insights into where the other side is coming from, or they realize that the other person isn’t quite as bad as they seemed, or they feel genuine empathy for the other person.

So with some understanding of what empowerment and recognition shifts look like and feel like, we can turn our attention to what the transformative mediator does to facilitate those shifts.

Core Activities

There are three core activities that we transformative mediators do constantly while mediating.  (1)  Attend to the parties with a microfocus on their interaction (2) Monitor ourselves to make sure we’re remaining true to our intention to support the parties in their efforts and (3) Respond to opportunities for empowerment and recognition shifts in ways that support the parties’ efforts.

Attending to the Parties

It’s almost a cliché that pure listening is hard and happens very rarely.  But it’s true.  There are so many distractions that a listener contends with that come from the listener’s own mind:  planning what to say next, noticing the flaws in the talker’s logic, thinking about how to solve the talker’s problem, thinking about what information would help the talker, thinking about what we want for lunch, etc.  So the skill of purely listening to what the talker is saying and how they’re saying it is not easily mastered.  And it’s a skill that many professionals aren’t accustomed to practicing, since we’re used to feeling like we need to analyze and evaluate, so we can offer a helpful opinion.  But in the transformative model our intention is to purely listen.

Attending to the parties is, itself, helpful at supporting parties’ efforts at making shifts.  To focus our attention on the parties is to behave consistently with the reality that empowerment and recognition shifts happen within and between the parties – we mediators aren’t the point – the parties are.  Our attention to the parties supports the parties’ efforts at paying attention to themselves and each other.  As the participants in our earlier training exercise discovered, just being listened to can be empowering.

Monitoring Our Own Intentions

Many good intentions, other than pure support of the parties’ efforts, naturally arise in us as we listen to the parties.  We want to solve their problem, to protect potential victims, to help them avoid a mistake, to share our knowledge that seems very relevant, even to tell a timely joke.  So vigilance about our own intentions is necessary to make sure that whatever we do in the mediation is consistent with our purpose, to support the parties’ own efforts at making empowerment and recognition shifts.  In the trainings, we spend time exploring the sources of these other intentions, so we can recognize them when they arise.

Responding to Opportunities

Mindful of our intention, we do and say things that are consistent with it.  The specific moves we make (things we say or don’t say) depend entirely on the context of the conversation.  We make every effort to enhance the conversation by acknowledging what the parties have said, giving them additional opportunities to clarify what’s been said, and giving them the opportunity to decide what comes next.  It would be misleading to name those skills outside of the context of a training, because it might appear that doing a certain skill, say reflecting, would be doing transformative mediation.  But each skill is only transformative mediation if it’s done consistently with the pure intention to support the parties in their efforts at deliberation and perspective-taking.

The Biggest Challenges

For me, the biggest challenge to adopting the transformative approach was my ego.  I like everyone to know how smart, wise, funny and cool I am.  I don’t get to show off much of that while I’m doing transformative mediation.  (Come to think of it, maybe I do seem cool to clients, because I’m so non-judgmental and supportive).  Also, especially when mediation has gone very well, I’d like some credit for it.  But often, after a particularly powerful mediation session, the parties are understandably focused on how much better they feel about the situation, about themselves, and about each other – they aren’t so focused on how masterful the mediator was.

For others who explore practicing transformative mediation, the big challenge seems to be difficulty believing that parties have the desire and capacity to move toward strength and responsiveness.  Especially if one comes from the world of litigation, where clients are assumed to be purely self-interested, it’s an extreme shift to start to see the relational aspects of conflict.  Litigators see hostility as either an attempt to maximize one’s own gain, or when it’s too extreme, they see it as an irrational part of human nature that clients should be advised to overcome.  Transformative mediators assume that same hostility is a natural part of human conflict, a manifestation of weakness and self-absorption.  And we see the distress that accompanies the hostility as evidence that the client would rather be in a state of strength and responsiveness.  And we know we can help with that.



Source: Dan Simon