MAJA BECKSTROM, Pioneer Press

Dan Simon contends transformative mediation is the alternate route to a kinder, gentler divorce. His critics find the approach, which often cuts attorneys out of the deal, unrealistic.

Dan Simon's screen-saver message reads: "It doesn't have to get ugly." The phrase is a mantra for Simon, a 35-year-old law-school graduate and divorce mediator.

Simon hopes to guide couples through a kinder, gentler divorce. He believes soon-to-be-exes can work through their differences and reach agreements on everything from dividing up the house to splitting time with the kids. He thinks they can do it without emotional scars and crushing legal bills.

"The lawyers, God bless them, can't help but try to get their client the best possible deal, and that results in the other person feeling threatened and frightened that they are going to get the raw end of the deal," said Simon, who said he works to "overcome" his own legal training in order to mediate successfully. "So, they fight back. That's the dynamic that the litigation process adds. It creates more conflict and mistrust than was there to begin with."

Simon's approach, called transformative mediation, is controversial. It is criticized by attorneys as well as mainstream mediators who say that, taken to its extreme, the hands-off style favors the stronger party and lets clients flounder without progressing toward a settlement.

Mediation, first used in labor disputes, migrated into family courts in the 1970s. No one tracks how many of the more than 17,000 divorces filed last year in Minnesota reached a settlement with the help of a mediator. But support for using a neutral third party has grown over the last few decades. The movement stems in large part out of concerns about cost and the harmful effects of bitter divorces on children.

People who practice transformative mediation say they facilitate a conversation, not a settlement. In fact, settlement isn't even a goal. Instead, the goal is to transform the couple's relationship.

"It's not about preserving the marriage," said Ken Fox, director of conflict studies at Hamline University and a proponent of transformative mediation. "It's recognizing that these two people, especially if they are parents, will have a relationship in the future, and it's about supporting them as they move from a destructive to a constructive relationship."

This idea of preserving a parenting relationship was what attracted John Hunt to Simon's services. When he decided to end his four-year marriage, Hunt, a 32-year-old graphic artist from St. Louis Park, consulted several attorneys. What he heard didn't make him happy.

"Everyone wanted me to get my ex, to dig it into her and make sure I got all the money I absolutely could," said Hunt. "That's not who I am as a person. I have no desire to mess her up financially or make her life hell."

But after his first mediation session, Hunt was skeptical. It was the first time in several months that he and his wife, Renatta, had spoken in person. She hadn't wanted to end the marriage, and during mediation she confronted him about a new girlfriend. He wanted to start addressing details of the split, such as parenting their 3-year-old daughter.

"The first meeting made me question the validity of the approach," he said. "I had hoped to get some things decided, but it turned into a mud-slinging session, and Dan seemed open to let it continue."

But by the next meeting, the tone had changed, and he and Renatta tackled custody details. He speculated that emotions needed to be aired before they could move on. After several sessions, they have yet to discuss finances. But Hunt is hopeful.

"I have a sense that morally we're doing the right thing," he said.

Though Simon is unobtrusive, his role is vital, Renatta Hunt adds. "If he were not there, we probably wouldn't have been able to talk about things in a rational way," said Renatta, 26. "He keeps our intentions good."


LITTLE TO DO WITH DISPUTE

Simon's interest in mediation grew alongside his disillusionment with litigation. As the son of a longtime St. Paul business attorney, Simon always assumed that he, too, would practice law. He earned an undergraduate degree at the University of California at Berkeley, then attended the University of Minnesota Law School. But after practicing business law for a year, he decided it wasn't for him.

"What we were doing as lawyers had very little to do with what the dispute was originally about," he recalled. "Someone generally felt insulted, misled or cheated, but we never dealt with that directly. Our job as lawyers was to do as much procedural violence to the other side as we could. As a result, both parties generally walked away dissatisfied."

He returned to the U to earn a master's degree in counseling psychology and trained as a mediator, opening his Minneapolis practice in 1998. His interest soon turned to the work of Robert Baruch Bush and Joseph Felder, who in 1994 published a controversial book called "The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition." The authors lay out a process that gives complete control to the participants and encourages them to see the other person's point of view.

Simon is one of the few people in the Twin Cities who uses the transformative approach exclusively. He charges $185 per hour and says it is not uncommon for people to resolve their differences in four sessions. He has computer programs to crunch numbers, copies of state child support guidelines and blank, oversized writing pads on which to jot down issues, but he lets couples decide whether and when to use these tools.

"I sit here with the attitude that, 'You know, you folks can do this.' I exude this optimism that they can figure it out and can take good care of themselves," he said. "When I do pipe up, it is strictly in the hopes of clarifying something."


NOT 'CLIENT-CENTERED'

This extreme hands-off approach worries many.

Marilyn McKnight is director of the 35-year-old Erickson Institute for Mediation in Bloomington. She has seen clients who have walked away from Dan Simon's sessions dissatisfied and without a settlement.

"They've said they really didn't do anything, he just sat and listened to them," she said. "I think if it's done in a purist way, transformative mediation isn't going to help a lot of people."

McKnight, who calls her approach client-centered, says she often throws out ideas, shares how other people in similar situations have resolved problems and explains the range of options.

"There are times when I have to do what I call promoting reality, where I have to say, 'Do you understand that the way you're operating is detrimental to your children?' A transformative mediator would never jump in and say that, yet parents need to be educated as they go."

Simon counters that couples are able to arrive at more creative solutions when they are completely in charge. For example, one couple split two time shares in New York and northern Minnesota on a handshake with the understanding that because the wife got the more valuable New York property, the ex-husband could request to use it once in a while.

"It was a handshake deal, and that's something traditional lawyers would be very nervous about," said Simon. "Their goal is to cover every eventuality in the future with the expectation that someday the people will fight about it. My hope is to foster a relationship, so down the road the parties can work it out themselves."


'YOU PAY AN AWFUL LOT'

Attorneys did not like the agreement Dan and Risa Sampson arrived at with Simon's help two years ago.

Risa had worked the first half of their marriage and put her husband through dental school, medical school and residency. The agreement provided her alimony, but her attorney didn't think it was enough and sent her back to renegotiate. Then her husband's attorney had problems with the settlement and sent him back to the table. Risa Sampson felt their already-strained relationship would sour more if they kept fighting. They finally stuck to their original agreement, despite their attorneys' advice.

"I got what I think was fair, and I have an amicable relationship with my child's father," Sampson said. "And those are the important things. A lot of people are after all the money. But you pay an awful lot of that extra money you get to the attorneys in the end. People will fight over $10,000 and end up having to pay their attorneys half of that, and they've yelled and screamed and fought and made the relationship that much worse. It just wasn't worth it to me."

Maja Beckstrom can be reached at (651) 228-5295 or at mbeckstrom@pioneerpress.com.


HOW DO YOU FIND A MEDIATOR?

Here are resources to help you find and evaluate mediators.

It's best to get a referral from a satisfied friend or family member, just as you would for any other service. You can also check the phone book. The state Supreme Court also keeps a statewide roster of neutral third parties, including mediators, available online at www.courts.state.mn.us/adr/index. The list contains more than 1,000 names, and inclusion means someone has completed 40 hours of training approved by the Supreme Court and six hours of continuing education annually.

The Association for Conflict Resolution, a national professional association, answers frequently asked questions and lists Minnesota members at www.acresolution.org. The smaller Minnesota Association of Mediators is putting together a Web site at www.minnesotamediation.org. The Minnesota State Bar Association also lists attorneys who practice mediation: www2.mnbar.org/sections/labor-employment/mediators.htm.

Interview a potential mediator in person. Most offer a free orientation at which they explain their approach and the process. Ask how many divorce cases have they handled; how many leave with a settlement; do they require attorneys to be present? Finally, ask for names of previous clients and interview them about their experiences.

Remember, Minnesota law says parents who divorce must at least consider an alternative to the traditional attorney-brokered settlement.