“Peace cannot be kept by force; it can only be achieved by understanding." -- Albert Einstein
I recently observed a real estate webinar regarding contract clauses that include mediation and arbitration to resolve disputes. The presenter was an attorney. One of the participants asked what the difference was between mediation and arbitration. The presenters response was as clear as mud and a good reminder for me that mediation is misunderstood. In this month’s edition, I am offering a description and examples about mediation and facilitation processes that demonstrate how they can best be used and what you should expect of the mediator or facilitator.
The process of mediation has been around since the beginning of mankind. Indigenous cultures have used their own processes of dispute resolution for century’s. Usually it involves an elder or respected member of the clan or tribe to facilitate the process. For example, Native Hawai’ians have Ho’oponopono. It’s a Hawai’ian practice of reconciliation and forgiveness. An elder or invited individual will conduct the process that allows everyone to speak and for the offender to take ownership of the harm that was caused by their action. It’s incredibly powerful and food is always part of the process. The significance of food is that it is something we all need and that it nurtures each and every one of us. Native American cultures each have a similar form of dispute resolution and the Maori of New Zealand are said to be the originators of the adopted Western practice of Restorative Justice.
The reason I share this with you is that the roots of Mediation come through powerful practices of working through interpersonal conflicts and healing; mediation did not originate from our legal and court system. It was not intended for interpreting laws; it’s about communication, resolving differences, transforming relationships, and finding common ground. It’s a very human experience and since humans can be unpredictable, I can tell you that I continue to be inspired and surprised by my clients.
Mediation is defined as a “generic term encompassing certain conciliatory or nonadjudicative dispute resolution processes that involve intervention by a party not involved in the dispute”. Mediation is also defined as “most simply a facilitated negotiation. An impartial third party (the mediator) facilitates negotiations between disputants…in their search for a resolution of their dispute” (from the Dictionary of Conflict Resolution).
Professional Mediators are expected to abide by the rules of their respective State, if such rules are in place. Oregon has adopted the Uniform Mediation Act (UMA) that was collaboratively created in 2001 and is widely adopted by most states. Common principles of mediator standards include: neutrality, confidentiality and self-determination. Before you hire a mediator, confirm that they belong to an association where membership requires upholding UMA standards and a process for resolving disputes you may have with your mediator (such as Oregon Mediation Association, OMA, or Association for Conflict Resolution, ACR, or the Dispute Resolution Section of the ABA), ask if they have liability insurance, and what neutrality, confidentiality and self-determination means to them.
Mediators also bring different styles to the process depending on their training, experience and the type of dispute. The following are the three most common styles of mediation:
Evaluative: Evaluative mediation is a process modeled on settlement conferences held by judges. An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and predicting what a judge or jury would be likely to do. This process emerged as courts started referring more cases to “mediation” (mediate.com). This is where you hear the terms “shuttle diplomacy” and “settlements”. It’s less about the interpersonal issues and more about whether or not you would prevail in court. This style is popular in the legal community.
Facilitative: In facilitative mediation…a professional mediator attempts to facilitate negotiation between the parties in conflict. Rather than making recommendations or imposing a decision, the mediator encourages disputants to reach their own voluntary solution by exploring each other's deeper interests (pon.harvard.edu). A facilitative mediator will ask questions, clarify, seek out emotions and impact while guiding the parties through the process of negotiation. This is the most common mediation style.
Transformative: Transformative mediation is mediation's Paleo diet. It's a back-to-basics and root-source approach to mediation. Instead of seeking resolution (a settlement/agreement), transformative mediation seeks to change (transform) party-interaction, perception and approach to conflict (highconflictinstitute.com). Transformative mediation is most impactful for long-term relationships such as family and workplace. It’s about empowering the parties and transforming the relationship.
Other styles include Narrative Mediation (Winslade and Monk) where the mediator works with the parties to reconstruct the story from one of conflict to the one that reflects the type of story/relationship all parties seek. It’s a very intense process and useful for family conflicts.
Facilitation: Collaborative process used to help a group of individuals or parties with divergent views reach a goal or complete a task to the mutual satisfaction of the participants (Dictionary of Conflict Resolution). A facilitator will collaboratively work with a group to create and enforce ground rules/group norms; work with strategic partners in establishing an agenda; manage time and difficult behaviors; encourage participation; offer different means to participate and protect confidentiality; collect the group memory and clarify next steps. If you have a team or meeting that tends to be high conflict or unproductive, or you need everyone to participate in the discussion/process, bringing in a third party facilitator can be a valuable use of everyone’s time as the meeting will have structure and role clarification. It also helps to build trust within a team.
I hope you find my explanation about mediation and facilitation helpful. If you have any questions, please reach out to me. I believe that this work chose me because I am passionate about fairness and bringing people together to resolve conflict. When people are able to effectively address conflict and communicate together, the results are stronger relationships, teams and organizations.
In the poetic words of Mick Jagger, "You can't always get what you want, but if you try sometimes, you might find, you get what you need."
#mediation #facilitation #conflictmanagement
Sunny E. Sassaman Conflict Management and Dispute Resolution Consultant