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

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

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

Other Applications

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.

Conclusion

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.

Endnotes

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).