Facilitative Mediation at a Glance
/New to facilitative mediation? You are not alone! Here is Trailhead Mediation’s quick guide to the basics.
WHAT IS FACILITATIVE MEDIATION?
Facilitative mediation is a voluntary process in which parties problem solve collaboratively with the assistance of a neutral third party (the mediator) in a setting that is confidential and privileged (with limited exceptions).
Purely facilitative mediators do not represent either party, provide legal advice, act as fact-finders, make recommendations, or decide the outcome. Instead, the parties drive the substance while the mediator actively manages the environment and process (detailed more below). Parties come to a binding agreement only if they choose to.
Facilitative mediation is qualitatively different than evaluative mediations, where mediators do offer opinions (for example, about how a court might act) and recommendations, and from arbitration, where the arbitrator issues a binding decision.
Trail marker: Most facilitively trained mediators do not practice “pure” facilitative mediation all the time, but adjust their style based on the needs of the parties along the spectrum between facilitative and evaluative styles.
WHAT IS THE PROCESS?
In general, the parties will go through the following steps during the course of a typical facilitative mediation session:
Pre-session preparation. At minimum this will include selection of a mediator and mediation style and administrative tasks such as signing an agreement to mediate and scheduling sessions.
Welcome. The mediator welcomes parties, goes over ground rules, and orients the parties to the process for the day, etc.
Introduction. Parties each have a brief period of uninterrupted time to share what is top of mind for them and what they hope to accomplish.
Agenda. Parties collaboratively create a preliminary agenda for the session (this may be changed as the day goes on).
Negotiation. The mediator facilitates a direct discussion between the parties (or will conveys messages between parties in a shuttle configuration) about the issues and work to negotiate an agreement.
Caucus. Parties may opt to take a break from the joint session to meet with the mediator privately (to take a brain break or work through issues before reentering negotiations). Generally if a mediator meets with one side they will automatically offer the same time to the other party.
Conclusion. If parties identify areas of agreement, they may put them into written form at this time. If not, parties may end mediation or plan for additional work at a later session.
Trail marker: Outside of settlement conferences, most often mediators meet with parties together. However, parties can also elect to use shuttle mediation, where parties remain in separate rooms and the mediator shuttles between. Shuttle mediation can be particularly useful for high conflict cases or cases where legal counsel need to play a strong role.
WHAT IS THE TYPICAL OUTCOME OF A FACILITATIVE MEDIATION?
Often the end product of a facilitative mediation is a binding agreement between the parties, for example a settlement agreement, repayment plan, memorandum of understanding, parenting plan, etc. This may be in final form or in a draft form ready for review and finalization by attorneys or others.
Other common outcomes include:
Beneficial exchanges of information.
Agreement on next steps to build toward future agreement.
Strengthened relationships.
Trail marker: Because mediation is a voluntary process mediators cannot guarantee that the parties will enter into an agreement of any kind in any specific matter. This is true of all styles of mediation, not just facilitative.
WHAT ROLES DO THE PARTIES AND MEDIATOR GENERALLY PLAY IN A FACILITATIVE MEDIATION?
Generally, the role of the parties in a facilitative mediation is to take ownership over the substance: generate and evaluate options, find missing information, formulate an agreement, etc.
Parties are also expected to participate in “good faith”. While this term can have varying definitions, in general it means that parties should:
Deal honestly (avoid deception and manipulation); and
Engage productively in the process (e.g., maintain a civil tone, listen, share relevant information, offer and respond to possible solutions, and enter into agreements (if at all) with the intent to perform).
Trail marker: While the expectation for good faith participation is sometimes informal, more often mediators will ask parties to expressly commit to this principal- either as part of a written agreement to mediate or by making a verbal affirmation.
In many jurisdictions, the rules governing confidentiality and privilege in mediation contain an express carve out for courts to monitor the good faith participation of parties in court-ordered mediations (especially in family cases) - meaning mediators may be required to disclose whether or not parties participated in good faith.
The role of the mediator in a facilitative mediation is- unsurprisingly- to facilitate. Beneath this term lies a range of tasks, including:
Establishing a safe space for discussion by, for example:
Creating a calm and welcoming environment.
Enforcing norms of civil discourse.
Being attentive to power imbalances.
Being responsive to the individual needs of the parties (including everything from ensuring any needed accommodations are in place to keeping an eye out for issues of personal safety/abuse).
Helping parties:
Identify key issues and needs.
Stay focused.
Communicate effectively with one another.
Think through the options (sometimes called “reality testing”).
Tracking options and discussions between mediation sessions.
Coordinating efforts with other experts in the process (attorneys, coaches, therapists, financial professionals, etc.).
Helping put agreements into writing.
Trail marker: While many facilitative mediators are also attorneys (or even former judges) it is important to remember that in their role as a neutral mediator they are NOT there to advocate for or represent the interest of either side. For this reason, where legal issues are central to the dispute, many parties will create a first draft of an agreement with the mediator then run it by legal counsel before finalizing.
WHY CHOOSE FACILITATIVE MEDIATION?
Facilitative mediation offers many possible benefits over other forms of dispute resolution (court, arbitration, etc.) including:
Personal agency: The power to decide stays with the parties most directly involved.
Privacy (Confidentiality & Privilege): In Washington State, mediation communications are both confidential (to the extent agreed by the parties) and - with limited exceptions- also privileged i.e. not admissible as evidence in court. Many jurisdictions (in the USA and around the world) have similar protections. As a result, parties can generally feel free to share information and make proposals which they might be fearful about sharing in another setting.
Cost and time savings: Mediation is often a faster and lower cost way of solving problems than court or other more formal settings.
Open and Improved Communication: Parties have a unique opportunity to express what is most important to them and to hear directly from the other side. There are no rules of evidence or restrictions on topics. Parties also often learn new communication skills or set expectations for communication that help them navigate future conflicts outside the mediation setting.
Creative, flexible, and nuanced problem solving: Parties can generally decide for themselves what standards and values should guide their decisions and can tailor their agreement to their specific needs.
ARE THERE OTHER OPTIONS FOR RESOLVING DISPUTES OUTSIDE OF COURT?
Yes! Facilitative mediation is not the only style of mediation available and there are also many other forms of dispute resolution available outside or adjacent to a courtroom setting (arbitration, collaborative law, traditional customs, etc.).
IS FACILITATIVE MEDIATION RIGHT FOR ME?
Maybe! Facilitative mediation is used to resolve conflicts across a range of issues and environments- family, business, labor, etc. While there are many possible benefits to the process (as noted above) there are circumstances where it may not be the best fit. Some things to consider:
Are parties willing to be responsible for getting any outside advice they need and developing their own solutions? If not, facilitative is not a good fit.
Are parties willing to mediate in good faith and negotiate? If not, a setting where there is a decision-maker (arbitration, court, etc.) might be needed.
Are there important interests that are not adequately represented by the parties who are able to be in the room (public interest, etc.)? If so, facilitative mediation (or mediation in general!) may not be the right fit.
Is there an overwhelming power imbalance or serious issue of personal safety? If so, again, facilitative mediation (or mediation in general!) may not be the right fit.
Facilitative mediation is a great tool, but like all other tools it has to be the right fit for the circumstances to do the job.
Your thoughts and comments below are welcome! Trailhead Mediation believes in the power of individuals to solve their own problems and uses the facilitative model to resolve disputes in both the family and community contexts. Contact us today for additional assistance!