Facilitative Mediation: A Good Model for Many Types of Conflicts
Facilitative mediation has been described as “…(M)ediators who work to generate a settlement that meets the needs of all sides.” Another definition is provided In the Agreement to Mediate recommended for the court referred mediation program in Virginia, it is described as: “A facilitative mediator guides the parties’ conversation and discussion of issues that are important to them, without providing an opinion or judgment regarding the merit of the claims or the likely judicial outcome. The mediator can assist the parties in assessing the strengths and weaknesses of their case. The mediator will not tell the parties what to do or suggest a particular outcome.”
Definition and Components
In facilitative mediation, the mediator works to facilitate negotiation between the parties using interest-based or win/win strategies. The parties work directly with the mediator and may include discussions regarding feelings and expectations. The mediators guide the parties in making informed decisions. The mediator does not advise the parties or attempt to influence their decisions. Parties may have attorneys, but typically, the lawyers do not attend the mediations. Facilitated mediation can be used at any stage of litigation.
Unique qualities:
Preserves self-determination in the context of having guidance to resolve the conflict.
Steps or stages:
Facilitative mediation follows the format of most mediation styles with an introduction, openings by all parties and then a discussion designed to elicit and meet underlying interests.
Advantages:
Provides an opportunity to address more than the presenting legal issues.
Allows for greater creativity in problem-solving than evaluative mediation.
The greater involvement of the parties in the outcome often results in greater satisfaction and fewer incidents of conflict.
May be convened early so that disputes can be resolved before the parties become more fearful, more entrenched in their position and have expended funds.
Mediator facilitates discussions of difficult topics that often assist parties in resolving some of the underlying conflicts.
Parties may learn some skills to manage future conflicts.
Disadvantages:
A facilitative process may take longer to resolve than more directive and evaluative processes.
If there is no continuing relationship, the parties may prefer something faster and become frustrated.
Requires skill set in facilitation for the mediator who will need to decipher a substantial understanding of the parties’ interests.
Types of cases:
Any case. Most mediation programs in the United States began with the facilitative model. Lawyers and lay mediators can practice the model.
For more information:
Sample forms are contained in this Mediation Handbook with references to types of federal mediation, including forms and checklists for facilitative and other styles of mediation. For more information on mediation, contact me.