I have had the good fortune of being an arbitrator and mediator for much of my thirty-seven year legal career. Throughout my work in New York, Connecticut and around the country, I’ve had the good fortune to meet many lawyers who wanted to work in the mediation field or to become mediators. Contrary to popular belief, there are many types of mediations and many types of mediators. Mediation is a very complex field and, in my opinion, is underutilized in this current legal environment, as well as in society as a whole. One type of mediation is transformative mediation. In transformative mediation, the mediator helps the parties to reach a new understanding of their conflict, and each other, and the mediator empowers the parties to be open to what is being presented in each moment. The transformative mediator focuses on empowerment and encourages party communication and decision-making. A transformative mediator understands that there may be strong emotions involved in the conflict. The parties to the conflict may be stuck in negative communication and at impasse. The transformative mediator understands that much of the problem-solving is in the hands of the participants. They control the process. The transformative mediator is there to help facilitate the discussion. Some of the purposes of transformative mediation are to encourage parties to resolve disputes between themselves, to help facilitate conversations between parties when communication has broken down, and to help parties to make decisions from places of empowerment.
Transformative mediation concentrates on the relationship between the parties. Transformative mediation works because some people do want to resolve issues and move on to the business of business and the business of life. We have gotten so jaded in our society because litigation is now built into our business model.
Transformative mediation can work for most types of cases. I have been asked whether transformative mediation can work for personal injury lawsuits. The answer is yes. From the plaintiff’s perspective, not all insurance adjusters are out to get you. From the insurance company perspective, not every plaintiff is a greedy fraud.
I do much of my work in the arbitration of medical claims. When I mediate medical claims, I speak to claims adjusters and we sometimes discuss the types of claims being submitted. The insurance industry is concerned with insurance fraud but not all insurance claims are fraudulent. From the claimant’s perspective, not all insurance adjusters are out to get you. We discuss how it’s the insurance company’s job to pay only valid claims and that, sometimes, adjusters will question claims that have been submitted. The purpose of transformative mediation, in these types of cases, is to get both sides to a position where they are receptive to resolving the dispute and to see the issue from the perspective of the other side. We work to get both sides to make decisions from a place of empowerment, not from weakness and fear. Despite of best efforts at mediation, certain cases must be tried. That will always be the case. However, the vast majority of the claims are valid can be resolved through mediation and the parties can be placed in a better position to discuss these types of claims in the future. Through transformative mediation, we try to salvage the relationship, or a portion thereof, if that is what the parties desire. Hopefully they will be in a better place if they have to interact on a case in the future.