Mediation is the resolution of disputes with the non-binding assistance of neutral third parties.  Its primary principle is self-determination -- control of the outcome by the disputants, in contrast to other-controlled decision processes like litigation.  What form a neutral's assistance should take is the subject of fierce debate among practitioners.

"Facilitative" mediators see themselves as process experts. They allow the parties to reach their own agreement by enabling communications, promoting mutual understanding, focusing the parties on their interests, and seeking creative solutions to shared problems. This type of mediator refuses to weigh the merits, predicts outcomes, assign values, or propose solutions. They call these activities "evaluative," and suggest that they are more appropriate to a judge or jury than to a neutral. (See Love, Lela P. "The Top Ten Reasons Why Mediators Should Not Evaluate." Fla. St. UL Rev. 24 (1996) 937, at 938-939).

Facilitative mediation is focused on how to solve problems, whereas evaluative mediation  focuses on what will happen if the problem is not solved - what kind of witnesses the parties will make, what a judge may do with .a particular issue, how high or low a verdict is likely to be, and so on. It highlights the risks of not settling - what the Harvard Program on Negotiation calls the BATNA, or Best Alternative to a Negotiated Agreement. (See Fisher & Ury, Getting to Yes: Negotiating Agreement without Giving In, at 104 (Houghton-Mifflin, Boston; 1981)).

An evaluative mediator helps the parties weigh alternatives in light of predicted results. The value an evaluative mediator increases with the accuracy of their predictions. The facilitative mediator’s value rests not on an uncertain prediction of future events, but on improving communication now. The participants in facilitative mediation are able to draw immediate conclusions about the effectiveness of the mediator.

While all types of mediation leave the ultimate decision regarding settlement to the disputants, they otherwise differ widely in the role of the party. In evaluative mediation, it is possible for settlement to be reached without the mediator interacting with a disputant. After spending time with the mediator, lawyers talk to clients and/or one another. Having eventually obtained client consent to particular terms, lawyers and mediators then finalize the terms of the agreement, which is then executed. The clients spend the entire time in separate rooms, and have little or no contact with the mediator. While this scenario is somewhat extreme, it is entirely possible in an evaluative setting.

In a facilitative setting, however, party non-participation is impossible. The facilitative process depends on the active and continuous communication of the parties. Some mediators minimize the lawyers' role, and even argue that attorneys' competitive and rights-based spirit that interferes with settlement. (Sternlight, Jean R. "Lawyers' Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Non-adversarial Setting." Ohio St. J. on Disp. Resol. 14 (1998): 269). Below are some successful techniques that emphasize self-determination and increase the chance of success. 

a.   Emphasize self-determination

The facilitative mediation process requires active communication. Some of the parties may not be used to this. They may be passive and quiet, used to letting their lawyer (or someone else) do all the talking. To be successful in the facilitative process, they need to begin communicating as soon as possible, and continue throughout the mediation. Although most mediators tell the parties they are in control of the process, the facilitative mediator especially needs to stress this, and emphasize the need for the parties to communicate freely if the process is to succeed. The parties' self-determination must begin at the very beginning. Although the mediator may have some idea of the disputed issues from the convening process, the parties should be required to state the issues to be decided-, set the agenda, and adapt ground rules. Emphasizing self-determination will increase parties' feelings of fairness, which in turn increase the likelihood of compliance with any agreement

But the facilitative process can increase strength and self-esteem:

"Facilitation by mediators emphasizes the principals' abilities to do their own critical evaluation and creative problem- solving.  While this may not be the best approach for every person in every problem that is mediated, mediation truly offers a distinctive opportunity for parties to exercise responsibility over their own disputes and their own lives. This is an important social value that other dispute resolution processes generally do not promote."

Of course, if the process chosen by the parties is clearly unworkable, it is up to the mediator (as process expert) to intervene, as little as possible but as much as needed. (See Lande, John. "Toward more sophisticated mediation theory." J. Disp. Resol. (2000): 321.at 325). 

b. De-emphasize adversarial behavior

Because participants in mediation are by definition in conflict, participants and their attorneys frequently exhibit adversarial behavior - threats of litigation, personal attacks, demonizing the opposing party, attacking others' suggestions and so on.  Likewise, attorneys advocating in mediation often treat it like a court hearing, in which there is a winner and loser. A competitive mindset makes settlement more difficult.  Accordingly, a facilitative mediator must emphasize that mediation is not a win / lose process.  Advocates and parties also need to be reminded that the process is ideally cooperative.

c. Communicate steadily and creatively

As the center of the mediation process, parties must stay at the bargaining table and keep talking. If a proposal is unacceptable, it must be rejected calmly.  Blame and accusations must be re-framed by the neutral as insecurities, and ‘detoxified.’  “Suspicious” caucusing in private should be minimized in favor of uncritical, face-to-face searches for mutual benefit. The parties should be continuously challenged to “expand the pie.” If communication stops, the process will fail.

d. Weaken cognitive biases -- expose irrationality and promote information exchange

Cognitive biases are mental stereotypes we use to help us in complex decision-making.  They sometimes lead to serious and predictable errors in judgment. Unfortunately, a number of cognitive biases make competitive behavior more natural than cooperation:

Reactive devaluation creates suspicion of proposals simply because their source is an enemy.
 Fundamental attribution error assigns malice where there is negligemce and intent where there is none. 

Confirmation bias is the tendency to overvalue information confirming a favored position. Overconfidence is the belief that our predictions are much more accurate than they are. The Illusion of control is our mistaken belief that we can influence uncontrollable events. (See Yudkowsky, Eliezer (2008), "Cognitive biases potentially affecting judgment of global risks", in Bostrom, Nick; Ćirković, Milan M., Global catastrophic risks, Oxford University Press, pp. 91-129).

Taken together, these biases make us trust others less and expect that we will prevail in any conflict with them.  This, in turn reduces our belief in their communication, and makes further disputing appear more attractive. The cure for these biases is objective information. (PSYCHOLOGICAL PRINCIPLES IN NEGOTIATING CIVIL SETTLEMENTS, Spring 1999 4 Harv. Neg. L. R. 1, 11-12, 48-50). A successful process should encourage the free exchange of data. Disclosure settles far more cases than secrecy, because people are driven to seek explanations. Their negative cognitive biases will lead them to assume the worst of opponents, unless the facts are there to replace assumptions. The effective mediator challenges assumptions.  For example, does the source of a suggestion really determine its merit?  ('Would you feel differently if I had made the proposal?") What basis is there for the assumption of malice ("Couldn't it have been an accident?) Challenging biases reduces their effect, making the unconscious irrationality conscious.

e. Change opening statements

Many mediators refuse to allow party opening statements in mediation, reasoning that because  (like opening statements at trial) they usually concern a recap of what an opponent has done wrong and what will be "proven," opening statements usually increase party aggressiveness without increasing the likelihood of settlement. John Blankenship remarks that such statements "are a waste time at best and inflammatory worst."

However, Blankenship also notes some party dis-satisfaction with the elimination of opening statements, because they "did not get a chance to tell their side of the story”- though in all probability, their lawyer would have told it for them. (Blankenship, J. T., "The Vitality of the Opening Statement in Mediation: A Jumping-Off Point to Consider the Process of Mediation." (2009) <http://www.blankenshiplawoffice.com> (last visited 01/15/2014)).

One possible response to this concern is to have the client give the opening statement, as a summary of what happened and of why the party came to mediation -- what they hope to achieve. This early recitation of goals will point the way to settlement, especially if there is overlap.  

f. Changing the Role of the Client and Lawyer to Draw out Communication

Communication by a party, and the resulting establishment of understanding, is the essence of facilitative mediation. But many people are uncomfortable speaking in a formal environment, even before a small group, and gladly concede such tasks to their lawyers. With the clients (not the law) the focus of the process, any attempt by counsel to commandeer the process must be quashed.

To promote communication from a party, the mediator may to have work with the attorney to change their ordinary role, for example discussing possible cognitive biases that can affect a client’s judgment, or drawing distinctions between litigation and the facilitative process.  In a facilitative mediation, an attorney is not an exclusive spokesperson. The litigator’s tendency to minimize client participation and discount emotion will reduce the likelihood of settlement. 

But a good lawyer, like a good mediator, can also be a source of creative settlement options born of experience. They can also be a guardian against unexpected consequences of a given settlement. And counsel will be less impacted by cognitive biases.  (For a discussion of counsel’s proper role in mediation, see Sternlight, Jean R., "Lawyers' Representation of Clients in Mediation: Using Economists and Psychology to Structure Advocacy in a Non-Adversarial Setting" (1999). Scholarly Works. Paper 269. <http://scholars.law.unlv.edu/facpub/269>.)

g. Focus on needs and goals, not dollars

Litigation attorneys naturally focus on the largest monetary recovery is the most successful outcome - after all, money is the only thing that juries can award, and judges' authority to order nonmonetary relief is strictly limited. And when money is the only medium of exchange, the question becomes inherently competitive: "how much of your money can I get?" Also, lawyers focus on rules, and discount the importance of emotions, because courts are worried about what is "relevant," or what the rules are - not about the best results.  But since the parties are in charge in mediation, the outcome can be more flexible. Parties in facilitative mediation must focus on meeting the needs that drove them to conflict if they are to reach resolution.

Fisher and Ury call these driving forces are "interests." They call negotiation demands "positions" to emphasize that what we ask for is usually not really what we are seeking, but a changeable strategy of demand and concession intended to obtain the real goal. (Fisher and Ury. pp. 22-23) Positions (at least to start) are what parties won't do; it is interests that define the conflict and point to solutions.

h. Ask questions to uncover interests

Sometimes parties are so focused on the position that they can't verbalize the underlying goals.  Asking questions is the mediator's best way to expose interests, like this:

  • "What really matters to you here?"
  • "What would you do with the money if you got it?"
  •  "What would you do with the resources devoted to this dispute if you weren't in it?"
  • "Assume you can have any relief but money. What would you want?"
  • "How do you feel about your relationship with X?" 
  • "How could it be restored?"
  • "What if X apologized?" 

By exploring potential positive futures, the important issues can be uncovered.

Conclusion

Evaluation has its place.  But it is governed by risk and fear of the unknown.  Facilitation focuses on the abilities of the parties, allowing them to express their needs and goals, and trusting them to work together and communicate, to discovery the ideal solution. 

By Scott Van Soye

Scott Van Soye is the managing editor of ADR Times. He is also a full-time mediator and arbitrator working with the Agency for Dispute Resolution with offices in Irvine, Beverly Hills and nationwide. He is a member of the California Bar, and practiced real estate, civil rights, and employment law for over twenty years. He holds an LL.M. in Dispute Resolution from Pepperdine University, where he is an adjunct professor of law. He welcomes your inquiries, and can be reached at scott.vansoye@agencydr.com or (800) 616-1202, Ext. 721. www.scottvansoye.agencydr.com