Not Just Compromise: A Unique Mediation Method for Effecting Peace

By Malkie Schulman

Professor Robert A. Baruch Bush is a law professor at Hofstra University Law School in New York who teaches a mediation technique called transformative mediation. A cofounder of this unique and peace-promoting method, he has written articles and books about it and spoke with Inyan to explain what transformative mediation is all about and how it differs from the traditional process.

A Spiritual Journey and a Professional One

“I grew up completely secular in Phoenix, Arizona,” Prof. Bush, now a Lubavitcher Chassid, shares. “I began to learn about Torah-true Judaism in 1978, when I attended my first-ever kosher l’Pesach Seder in the Chabad shul in Berkeley, California.

In 1980, Prof. Bush moved to Crown Heights where, 37 years later, he still resides with his wife — his children are grown and live elsewhere.

“The biggest thing about first becoming religious,” he reminisces, “is the intense connection the baal teshuvah has with G-d. All your prayers are fervent, deep experiences because the soul is first opening up. As you progress in your journey and move further away from those beginning experiences, it becomes more work to connect because you have to be more conscious and intentional. The beginning is kind of like the Elul experience — searching for Hashem when He is near — and after that it’s like the rest of the year when it’s more difficult.”

Before Prof. Bush made the permanent move to Crown Heights, he attended the first Chabad baal teshuvah yeshivah for six weeks of heavy learning. Then it was time to get back to supporting his family. After moving to New York, he attended weekly farbrengens and learned the Rebbe’s talks on a daily basis. Over time, he learned Hebrew and Yiddish.

Prof. Bush’s spiritual journey began at about the same time as his professional journey of teaching law. “Even in law school, I was interested and involved in the mediation aspect of law,” he explains. After law school, while still in California, he ran a center that provided mediation.

The type of mediation he taught at the time was conventional mediation, which meant helping and often urging disputing parties to reach a settlement. In this type of mediation, the mediator takes more of a controlling, active role, steering and managing the conversation to make it more likely that the opposing parties will come to a resolution.

“In 1990,” Prof. Bush relates, “I began to see that there was more potential in mediation than hammering out agreements between disputing parties. I met Professor Joseph Folger, a social scientist at Temple University who shared my views of mediation’s potential. In 1994, we co-authored a book called The Promise of Mediation that launched the idea of transformative mediation.”

What Is Transformative Mediation?

“I would say the essential difference between conventional mediation and transformative mediation,” Prof. Bush says, “is that conventional mediation is mediator driven while transformative mediation is party driven.”

In other words, in conventional mediation the mediator is the one who comes up with the solution to the problem and persuades the parties to accept it, as opposed to the parties reaching their own solution with the support of the mediator.

Another important difference in transformative mediation is that it aims to change the quality of the parties’ interaction and their attitudes toward each other, not just to find a resolution to the current issue.

“There is a saying,” continues Prof. Bush, “that if both parties leave unhappy, the mediator has done a good job. Compromise by its very nature leaves neither party happy, which is why it is ineffective.”

Through active listening, reflecting back the parties’ words and not suppressing their differences, mediators help individuals feel heard and validated — and hear each other as well. When people are able to express their feelings and hear each other, they are likely to come to a resolution with which both sides will be genuinely satisfied.

It may take two hours, it may take 12 hours, it may take weeks or even months, but if the parties are motivated to make peace, it will happen.

On rare occasions, it will even take years. In one case, a couple who had been married for 20 years wanted a divorce. The conflict centered around the fact that the husband would not leave the house. Though he knew it was something he needed to do, he felt too depressed about the divorce and his financial problems to actually do it.

He planned with the mediator and his wife how he would move out. However, a few weeks later, they met again and the husband requested an extension. The next time he wanted an extension on moving his belongings out, then an extension on when they would consolidate their joint account debts, then an extension on when he would start reconnecting with their daughter whom he had alienated.

Each meeting over many months involved the husband saying, “It’s not so simple,” while the wife would answer, “You have to keep trying.” Finally, he asked her if she could handle some of the tasks for him, and she agreed.

After four years and ten two-hour meetings, the divorce was finally complete. More than that, both parties were deeply satisfied and wrote a letter to express their appreciation for the mediator’s kindness and patience.

“The mediator, a colleague of mine, said, ‘I wouldn’t have imagined that it would take four years to finalize a divorce, but this was what worked for them,’” Prof. Bush relates. “If the mediator would have gotten impatient, he probably would have encouraged the wife to take legal action. But in this type of mediation he stayed with them to support their strength and their understanding of each other.”

A Different Viewpoint

Transformative mediation is a different way of viewing the average person, Prof. Bush explains. Those who practice it believe that people are basically decent and are not interested in negative conflict between themselves and others.

“We say that when two individuals come into mediation they are typically acting ‘small and mean.’ When they leave the successful mediation process they are acting ‘big and generous.’ In transformative mediation lingo ‘small’ means unsure, lacking self-confidence, feeling helpless; ‘mean’ is feeling closed and hostile towards others. When they leave, we see them feeling ‘big’ — good about themselves — and ‘generous’ — understanding of the other party.

“Essentially, we help by supporting them in going from poisonous interactions to normal, decent interactions.”

Two other terms associated with the process are the empowerment shift and the recognition shift. The mediator’s job is to help the client to feel his own strength. The goal is for him to go from feeling weak and scared to strong and clear; this is called the empowerment shift. The recognition shift is a shift from hostile and selfish to open and understanding.

To illustrate this point, Prof. Bush shares the following story involving a disgruntled employee who complained incessantly, mostly about the fact that he’d constantly been overlooked for promotion. He insisted it was discrimination.

The mediation started off with the employee bemoaning the fact that he had been wanting to be promoted for a long time. He asserted that he deserved it, but he kept getting overlooked. He mentioned that he’d heard the manager say that he would never train or promote him. The mediator let him talk and talk, then reflected back to the employee what he had heard him saying. Even though the manager was getting upset, he remained quiet and did not interrupt.

Then it was the manager’s turn to air his grievances. “Do you know why we passed you by all these years? All you are is a jailhouse lawyer who instigates other employees to complain. You make it hard for the managers. It never occurred to you to think about what the manager goes through.” Just as the mediator supported the employee in speaking, he did the same with the manager and reflected back his words.

Amazingly, while listening to the manager’s diatribe and the mediator’s reflection of it, the employee began to really hear him. When it was his turn to speak, he acknowledged that he had indeed never thought of the manager’s position at all and he now realized that he should have. When the supervisor heard the employee’s words, his attitude changed as well.

He said, “I haven’t heard you say anything like this in two years, but now that you understand, I want you to know that I will be proud to train you as manager. You just have to recognize that it’s going to be hard and I’m going to be hard on you.”

“Perfect,” the employee answered.

It’s important to note, concludes Prof. Bush, that these individuals were regular, blue-collar workers, but they still wanted to act with self-respect and understand each other.

Mediation and Jewish Law

Prof. Bush discusses whether he utilized Talmudic insights to help him develop the transformative mediation process. The short answer is no, as he shares, “I was involved in mediation a number of years before I became religious and I was already very committed to it. In my early stages of becoming frum, I understood that Torah life revolved around Jewish law. I thought, ‘Uh-oh, Torah must be against the mediation process; perhaps the mediation process is halachically incompatible.’

“Then, I learned Pirkei Avos. In perek dalet, the mishnah says that a judge who rushes to issue judgments is arrogant and a fool. The correct way is to encourage compromise. Was I relieved — I didn’t have to give up mediation after all!”

Subsequently, Prof. Bush learned the Rambam and other Jewish sources and discovered ideas that expanded on the role of the judge in Jewish law. When a litigant comes for a din Torah, Jewish law encourages the judge to suggest to the litigants that, rather than insisting on asserting their rights in beis din, wouldn’t it be better to reach a compromise? (Of course, the judge must make sure the compromise is close to the halachic rule.) Prof. Bush has since learned that there are many Jewish sources that support the mediation process, and that mediation is very much a part of a Torah-true life.

Mediation in the Rabbi’s Study

Prof. Bush taught transformative mediation to Rabbis-in-training at the Yeshiva University RIETS program for several years. “I wanted the Rabbinical students to be able to work with scenarios that would be likely to arise for them as practicing Rabbis. They were instructed to write case histories and in class we would simulate mediating them.”

One scenario a student envisioned was regarding a couple that was conflicted about whether the support they were receiving from the wife’s father was fair and in accordance with the original promise. On the other hand, there was the question of whether the husband was extending his learning beyond the agreed-upon time, forcing the wife to work to support the family for more time. There would clearly be resentment on both sides in this situation.

The class discussed ways in which the Rabbi could mediate. With transformative mediation, he could support both sides through active listening and reflecting back. In this manner, he would be ultimately helping them pursue their own path to peace.

Another common scenario that was posed was of a long-standing congregation in a declining neighborhood, where new families want to sell the old building and relocate the shul to a newer neighborhood. There would be conflict between the older members who founded the shul and prayed there for years and the younger members who thought it was a drag on their needs. This communal conflict is a common scenario, especially in Jewish communities in New York. Again, the class discussed how as mediators they might support the disputants to enable them to reach their own resolution — and maintain their sense of self-respect and concern for one another.

“Interestingly enough,” Prof. Bush shares, “I met one of the Rabbis who took that course a few years later. He told me that as a Rabbi, he was once in a very similar situation. There were two members of his congregation in dispute and each wanted him to support them. ‘If I would have done that,’ he related, ‘no matter who I would’ve supported, I would’ve lost half the congregation and divided people.’

“So he used what I had taught him to help the parties think things through and come to a decision themselves. And it worked, especially since they really did want to recover their sense of calmness, clarity and compassion as members of the same congregation.”

Mending Relationships

Where there is dispute, nine times out of ten, there is a relationship involved, contends Prof. Bush. Whether it involves family, work, organizational or community issues, relationships are always at the heart of the conflict.

With conventional mediation, you can work out a solution but it will leave negative attitudes untouched. For example, there was once rampant conflict in the United States Postal Service — giving rise to the expression “going postal,” which means becoming extremely and uncontrollably angry. Eventually, the leaders of the organization realized that it was important to change the attitudes of the coworkers towards each other rather than just banging out a solution to the immediate conflict; otherwise, they would just go back to the same poisoned atmosphere and it wouldn’t be long until another dispute arose.

“Everybody has feelings, whether you are a truck driver, a garbage collector, a stockbroker or a lawyer. We all suffer when personal interaction is destructive and negative,” Prof. Bush points out.

Of course, there are situations where the parties involved don’t want to experience the more lengthy process of transformative mediation. If so, nobody will force them to do it. Prof. Bush maintains that it is likely that disputants will be more willing to use his method when they are in a situation in which they will need to continue to work together, whether it’s a divorce with children, two partners in a business that neither wishes to leave, or a faculty disagreement.

However, even when one party is leaving the relationship, transformative mediation can be useful. In a business where one party is leaving, for example, if underlying bad feelings are not addressed, the one leaving will carry baggage. He might then find himself having a difficult time trusting the next person who wants to go into business with him because of those unaddressed negative emotions.

Tapping Into the Positive

Prof. Bush shares a real scenario of a workplace dispute involving a manager and a senior manager who started out as peers, but then one became the supervisor of the other. It was tough for the supervised manager to adjust to being evaluated by his former coworker.

Before the actual mediation began, the mediator spoke to each of them privately to explain how the process worked. In conversation with both of them, each related to the mediator that he had prayed the night before, and it turned out that each prayed for the same thing: that G-d would help him to be clear and firm but still open to the other person.

Neither of them prayed to make the other change the way he behaved, notes Prof. Bush, but they both wanted to be firm, yet able to listen to the other side.

Prof. Bush points out that this story captures what transformative mediation is all about and why it is believed to have value for people in conflict: People don’t pray for something unless it is truly important to them. Clearly, maintaining their self-respect and decency to others matters greatly to people.

The transformative approach believes that positive capacities for strength and understanding are the true core of human nature. Negative deficits of weakness and hostility are temporary and situational. Conflict brings out people’s worst side, and transformative mediation is all about helping people in the midst of conflict to reconnect to their better side.

And, Prof. Bush concludes, it does just that.