Sometimes the first choice is not the best choice. A person confronted with a dispute, for example, may head to litigation without even considering the less expensive and possibly more satisfying route of facilitative mediation.
This article explores facilitative mediation, describes types of cases that can benefit from a facilitative orientation, and provides lawyers with practical advice for preparing themselves and their clients to participate in a productive facilitative-mediation process.
What is “Facilitative” Mediation?
Mediation is a voluntary, confidential dispute-resolution process in which a neutral person helps the parties negotiate a resolution of the dispute. Many people are unaware that mediation comes in more than one form. The two most prominent formats or orientations are evaluative mediation and facilitative mediation.1
Barbara Block Paterick, U.W. 1978, Marquette 2012 (Graduate Certificate in Dispute Resolution), is an attorney with Neider & Boucher, Madison. She has 15 years’ experience in civil litigation and presently practices as a mediator and a mediator counselor.
Michael F. Moore, Lewis and Clark 1983, is a professional coach for lawyers and founder of Moore’s Law, Milwaukee. He has more than 25 years’ experience in private practice, as a general counsel, in law firm management, and in legal recruiting.
Evaluative mediation focuses on the case and the likelihood that a party will or will not prevail at trial. Many lawyers’ familiarity with this type of mediation comes through their participation in mediation as part of a court-ordered pretrial settlement attempt.2 These sessions often are conducted much like a settlement conference: the mediator keeps the parties separate for much of the session while shuttling back and forth with one settlement proposal at a time, offering advice based on the merits of the case or defense.
Facilitative mediation, also called interest-based or principled mediation, helps the parties resolve their dispute through exploration of their interests and what they need to meet those interests. Although there is overlap between facilitative and evaluative mediation, the focus is different. While evaluative mediation generally focuses on the parties’ positions for settlement (what they “want”) and on the case (the existence of a legal wrong; damages; evidence; and witness credibility), facilitative mediation focuses on a broader range of interests. The facilitative mediator helps the parties explore desired compensation or restitution but also expands the scope of interests to include things such as reputation, employee morale, risk preference, contingent payments, the desire to continue the relationship, the structure for resolving future disputes, and the need to feel that the opposing party has actually listened to their concerns.
In facilitative mediation, the mediator encourages the parties to jointly explore their respective and mutual interests before beginning to formulate settlement options. This allows the parties to expand the pie, by simultaneously exploring various settlement options that can create mutual value and satisfaction, that is, seeking a “win-win” resolution. The goal is to maximize value, by finding an outcome that is better for both sides than is any other outcome, including walking away or going to trial.
A person trained and experienced in facilitative mediation is necessary to help the parties identify their interests and create settlement options. The mediator decreases personalization and keeps the focus on the parties’ interests rather than on their settlement positions. Although there may be separate meetings between the mediator and each party to discuss sensitive or confidential topics or to allow the parties to privately express emotions or cool down, much of a facilitative-mediation procedure is likely to occur in joint session so the parties can hear each other, expanding the perspective from which each party views the dispute. Joint sessions also allow aggrieved parties to have the opportunity to directly express their concerns and to feel they have been heard. Such open communications can often prevent impasses and lead to more productive settlement negotiations.3
Types of Disputes that Benefit from Facilitative Mediation
The facilitative-mediation focus on the parties’ interests and needs makes it particularly appropriate for disputes between parties whose relationship predates the dispute, such as employers and employees, partners, shareholders, limited liability company members, vendors and vendees, relatives (over family-business or other matters), neighbors, landlords and tenants, and estate beneficiaries. The parties may wish to resolve their dispute in a manner that would allow their relationship to continue. Similarly, because many disputes affect other individuals involved with the parties or their businesses, the parties may wish to account for the effect that their dispute and its resolution may have on those persons.
Creative Resolution of Disputes
Consider the well-known story of the two sisters and the orange.4 Two sisters are fighting over the last orange in the fruit bowl. Their mother’s inclination is to cut it in half, one half for each girl. However, after asking each daughter why she wants the orange, the mother finds out that one daughter wants the orange zest (skin) for a cake she is making and the other is hungry and wants to eat the orange. By giving the skin to one and the fruit to the other, both girls’ interests are satisfied, while dividing the orange in half would not have satisfied either interest.
The Business Application
Sidebar: Ethical Issues in Mediation
Marie Stanton explains that both trial counsel and mediator have responsibilities, mostly unwritten, to keep the informality of mediation fair, honest, and even handed. Jump to the sidebar at the end of this article.
The following is an example of using facilitative mediation in a business dispute. For the last eight years, Bob and John have been partners in That’s Hot Coffee, a coffee shop in a small town in Wisconsin. They were college roommates for four years and have been close friends for 10 years. Their wives and children are also friends. Bob is an accountant and provides the financial oversight for the business, and John manages the day-to-day operations. The business has been very successful, and John wants to add a second location. Bob thinks the town is too small to support another coffee shop. The two have been arguing about the direction of the business for six months and have reached an impasse. Bob feels as though he cannot continue in the present situation and is contemplating dissolving the partnership, requiring the winding down of the business.
Fortunately, when Bob contacted a lawyer, the lawyer suggested that Bob and John first attempt resolving their dispute with the help of a facilitative mediator. The facilitative mediator assisted Bob and John in discussing their interests. They both were concerned about the profits generated by the business, their local reputation as businessmen, and their reputation for brewing the best coffee in town.
With the help of the facilitative mediator, the men focused on what interests they needed to satisfy to resolve the dispute. Both preferred to continue the business. They discussed expanding the hours in the existing location and adding new products like hot cocoa drinks in the winter and soft-serve ice cream products in the summer. They also discussed dissolving the partnership, with John buying out Bob’s interest over a five-year period.
With all these options on the table at one time, the facilitator helped them decide which options would better satisfy their interests than would the alternative of forcing dissolution. Although the men could have discussed the same options and negotiated the same outcome without a facilitative mediator, the emotional aspects and the six months of arguing had prevented productive negotiation. Without the negotiation carried out in facilitated mediation, there was only one option to resolve the dispute – dissolution of the partnership and business, with the deterioration or destruction of the personal relationships. The town would have lost Bob and John’s coffee shop, John would have lost his career, and both men would have lost the profit they had been making.
Comparison of Evaluative and Facilitative Mediation
Evaluate the “case”
Determine multiple interests; depersonalize the dispute so parties can focus on the issues, not the other party
Simultaneously generate and examine no more than two proposals (offer and demand) at one time; this leads to mutually exclusive positions and inhibits development of multiple solutions
Parties generate multiple options for settlement; this leads to a multipolar view of solutions
Proposals are viewed as requiring “yes” or “no” responses
After parties’ settlement options are explored, parties jointly evaluate them: they may expand the pie, trade low-priority items for high, or find alternative deals
Attitudes tend to be win-lose, right-wrong, or zero-sum
Attitudes are win-win; there is mutual satisfaction with the resolution
Individuals in other types of situations can also benefit from facilitative mediation. For example, consider the enforcement of a noncompetition clause in an employment contract. Litigation might result in the employer obtaining an injunction against a departing employee, prohibiting the employee from working within the geographical area dictated by the clause. Or the court might find the noncompetition clause unenforceable, allowing the departing employee to directly compete. Facilitative mediation might allow the parties to avoid this either-or/win-lose outcome by finding a resolution that meets both parties’ needs.
For instance, in one scenario, a husband and wife who were both physicians worked at a small clinic. When the marriage fell apart, they found that their animosity, stress, and tension created an untenable work environment for both themselves and their coworkers. The husband decided to leave the clinic but because he wanted to remain active in the daily lives of his children, he planned to open his own practice in the same small city. The clinic owners had spent considerable sums recruiting the husband and had paid him a salary while he was building his own reputation. They did not want him to leave, much less open his own practice.
Litigating the validity of the noncompetition clause could result only in one of two possibilities: the departing physician being prevented from practicing in the town or the clinic being prevented from enforcing the clause. The clinic and the husband elected to try a facilitative mediation. The mediator elicited the parties’ interests and guided them through discussion of options that could not be part of a litigated result. The husband had no dispute directly with his employer; he just did not want to work alongside his ex-wife. The parties explored options that would meet the departing husband’s interests in continuing to practice medicine and remaining close to his children, while also satisfying the clinic’s interests in continuing to receive revenue from the husband’s practice and minimizing costs of recruiting a new physician. These options included opening a satellite office in a small town eight miles away, staggering the former spouses’ work schedules, and severing the employment relationship but agreeing on a percentage of revenue to be paid to the clinic for an 18-month period to help compensate it for lost revenue and recruitment costs.
Preparing Clients for Facilitative Mediation
Parties interested in facilitative mediation should seek out mediators with training and experience in the facilitative orientation. It is the mediator’s job to help the parties explore and prioritize the interests that need to be met to resolve their dispute and to help them create resolution options that satisfy all parties’ needs to the extent possible.
Preparing for facilitative mediation requires a different focus than preparing for a settlement conference or an evaluative mediation. A lawyer should sit down with her client to discuss the client’s needs, objectives, interests, and goals. She then should do the same analysis for the other parties, using public knowledge, research, client knowledge, and information gleaned from previous negotiation sessions. Finally, the lawyer and the client should discuss how to coordinate the parties’ complementary and conflicting needs and interests, so they can come to mediation prepared to discuss several potential solutions to the dispute that maximize joint gain for the parties.5 Some of the things to consider might include the subject of the dispute; who has a stake in the outcome and whether adding those persons to the mediation would open new doors; potential modifications to the deal, the resource in question, or the location where an event or job takes place; timing; contingent payments or actions; the advisability of outside-party reviews; and ongoing internal procedures for dispute resolution.
Creating a better, integrative resolution in legal disputes is not only possible but also likely, if the parties expand the lens from which they view their dispute. With the help of a facilitative mediator, parties are often able to resolve their disputes without the expense, frustration, economic loss, and business and personal disruption entailed in pursuing litigation. For disputes between parties involved in a business, family, or community relationship, consider facilitative mediation before the dispute has gone on so long that complete destruction of the relationship is likely, preferably either before or in the early stages of litigation. A facilitative mediator can assist even those parties who have attempted negotiations but reached impasse, either because of high emotions or because of the failure of bipolar negotiation.
1 Debate has been ongoing for many years concerning which mediation approaches are the “right” ones. This is an academic debate. The point to remember is that there are different orientations; when shopping for mediation services, you will be best served by understanding the differences and seeking the type of service that best fits the needs of the particular dispute.
2 Wis. Stat. § 802.12(2).
3 Concerns about open communications between the parties in mediation should be alleviated because, with minimal exceptions, they are privileged in Wisconsin pursuant to Wis. Stat. section 904.085.
4 P.J. Carnevale, “Creativity in the Outcomes of Conflict,” in M. Deutsch, P.T. Coleman, & C. Marcus (eds.), The Handbook of Conflict Resolution 414, 417 (San Francisco: Jossy-Bass, 2006).
5 Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education? Harvard Neg. L. Rev. 97, 109 (2000).
Ethical Issues in Mediation
It is no surprise that litigation expense and the risk of outcome continue to reduce the number of jury trials in favor of mediated settlements. However, this familiar form of resolution continues to operate with few rules to guide the process or the parties’ and mediator’s conduct. The Model Standards of Conduct for Mediators describe mediation as an effort of a third-party neutral to facilitate communications and negotiations to provide “voluntary decision making” by the parties to a dispute. Mediation, per the Standards, consists of “free and informed” choices made by the parties resulting from “voluntary and uncoerced” decisions. (The American Bar Association and the American Arbitration Association jointly adopted the Model Standards in 2005.)
Marie A. Stanton, U.W. 1975, is a partner in Hurley, Burish & Stanton S.C., Madison, practicing in litigation and mediation. This article is based on her May 2013 presentation at the State Bar of Wisconsin PINNACLE® Litigation, Dispute Resolution & Appellate Practice Institute.
So what does this mean for attorneys? In short, we have duties to fulfill. Both trial counsel and mediator have responsibilities, mostly unwritten, to keep the informality of mediation fair, honest, and even handed.
Three ethical issues commonly pointed to mediators are maintaining neutrality, keeping confidences, and ensuring that the process produces a settlement that is knowing, informed, and voluntary. The following examples focus on evaluative mediation but can be adapted for facilitative mediation as well.
A mediator’s neutrality can be tested in unexpected ways. Negotiations that begin with a demand and a counteroffer that overlap are a good example. Does the mediator suggest the plaintiff start a bit higher and the defense be more conservative? Or, does she probe the bases for each party’s assessment, to understand, and perhaps challenge, why the defense wants to pay more than the plaintiff expects to receive?
Admissions present ethical dilemmas as well. When trial counsel discloses a key witness is unavailable, or the client refuses to attend trial, the tension between the type of demand and counteroffer that fuels a settlement is missing. Should the mediator recommend a strategy to counsel that makes the mediation more productive – or simply tell him to toughen up and negotiate from a position of strength? Is that too helpful to one of the parties – or a proper injection of mediation technique to get a case on track for a fair and honest mediated settlement?
Other questions put to the mediator may invade her neutral space as well: out-of-town counsel’s questions about the judge, counsel, verdict, and local juries; the client who tells the mediator to settle for what the mediator feels is fair; the young lawyer who asks for trial advice. In each case, the mediator must remain vigilant to her role, that is, clarifying the issues and developing but not dictating the interplay of law and facts, while continually maintaining a respectful distance between herself and the decision makers.
Mediation communications are confidential. However, much of what is talked about in mediation has already been disclosed in the record. Early identification of information the parties want held in confidence is key to protecting their interests and avoiding a disclosure without authority. Objective information is more easily protected: witness testimony, documentary evidence, and authority to settle. Strategies, planning, and decisions yet to be made that are shared with the mediator and scattered throughout the negotiation are the most difficult “confidences” to track. Clear communications between counsel and mediator, note taking, and periodic regrouping with counsel keep the management of confidential information more secure.
Assessing the Parties’ Knowledge
Assessing the adequacy of the party’s knowledge to sign off can be challenging. The mediator must be aware of the degree of the individual’s participation and understanding of settlement. If opposing sides share the goal of reaching an enforceable settlement, the parties must, to some degree, understand the issues and the risks. A correct explanation of the law and relevant facts that affect reaching a knowing decision to settle is critical.
Settlements “at risk” include ones in which there has been reliance on misinformation received from counsel that in a mediator’s judgment can impair an informed settlement, such as incorrect information on statutes of limitation, insurance limits, damages caps, and statutory immunities, to name a few. Correcting the mistake is simple when opposing counsel agrees to the disclosure of the mistake. If not, the mediation must be adjourned in the face of a defective or unenforceable settlement.
Also of concern are settlements in which key decision makers may be absent or uninvolved. This can include settlements involving minor children that are managed by parents and trial counsel with little input of a guardian ad litem.
It is the mediator’s role to maintain an even playing field that allows productive learning and the progress required to reach a settlement. Managing, and sometimes limiting, the expectations of clients and counsel to maintain a neutral but successful process requires continual observation of ethical issues that may arise.