Moving Beyond Adversarial Ways to Resolve Conflict: Why Facilitative Mediation Leads to Lasting Solutions

People often think that the only way to resolve conflicts are through adversarial processes, but there another way to resolve conflicts through collaboration and constructive communication with a facilitative mediator.

In an increasingly complex world, conflicts are inevitable—whether at the workplace, within families, or between neighbors. The traditional methods of resolving disputes through adversarial processes, such as litigation or arbitration, can often lead to lengthy and costly processes that leave parties feeling defeated or unheard. Even another form of mediation style (evaluative mediation) can operate in the framework of a legal adversarial dispute by resolving conflicts by scaring the parties into settling by showing how their positions are unrealistic or how they might lose in a non-binding trial run of a case.  In evaluative mediation, the mediator offers opinions about who should win or lose the case (similar to giving parties a second opinion or trial run of an arbitration or lawsuit) to induce the parties to settle. However, the approach of facilitative mediation offers a refreshing alternative.

What is facilitative mediation?

Facilitative mediation is a type of mediation style that emphasizes collaboration and communication among the parties in a dispute (disputants), fostering a more constructive environment for resolution. A facilitative mediator does not generally give opinions but rather facilitates communication and creative problem solving amongst the participants to help them figure out if there is a potential for settlement.  By empowering participants to explore their interests and work towards a mutually beneficial solution, facilitative mediation helps create lasting agreements that can enhance relationships and preserve valuable resources.

In facilitative mediation, disputants have the autonomy to decide what they can agree to or if they wish to settle. Disputants achieve win-win solutions by finding what parties agree to and improving communication among all participants. Because the mediator does not judge who was right or wrong, participants do not leave feeling judged or like a loser. Conversations generally also do not focus on the past (who did what) but rather on the present and future (what the participants can agree to now and how they will behave from here on out). 

Beyond litigation credentials: Why choosing the right background for the outcome you want matters

Facilitative mediators, on the other hand, focus on the conversation—not the paperwork. They don’t need to sift through mountains of evidence, saving participants both time and money on mediation and attorneys’ fees. A common complaint about mediators selected from large mediation platforms is that they do not listen or know essential conflict resolution skills. This is because large mediation companies and panels typically select mediators based on litigation or judicial experience, choosing individuals based on litigation experience over conflict resolution knowledge, ability, and experience. This would be similar to choosing a statistician for a baseball team based on baseball playing skills rather than an aptitude for statistics.

While litigation and judicial experience may be helpful for arbitration or evaluative mediation approaches, such experience is not that helpful and could even but harmful for mediators with a facilitative mediation style.  Veteran litigators and judges can often take an evaluative mediation approach, which is similar to a non-binding arbitration or court decision (a second opinion) where the evaluative mediator will tell the parties who they think would win the case if an arbitrator or judge made the decision.  They can have a hard time shaking their habit of being quick to judge who they think is right and partisanship into a neutral position of a person who does not judge either party nor advocate on behalf of any side.

Why facilitative mediation is usually faster, cheaper, and more effective than evaluative mediation or litigation for many conflicts

A facilitative mediator does not need to read all of the proof or evidence like an evaluative mediator would because the facilitative mediator is not determining who is right or wrong. Rather, a facilitative mediator facilitates conversation to see if there is a potential for agreement. Gathering and reading proof can be costly, not only in mediation fees but also in attorneys' fees or participant time to prepare the materials for the mediator to read.

Because facilitative mediation involves asking about the parties’ interests instead of their legal position, lawyers are not always involved in the process, which means a cost savings for participants. In fact, some judges will exclude lawyers from the mediation process because they can often hinder a resolution. If lawyers are involved in a mediation process, they can be used to review a final settlement but do not need to be involved in the entire process.

However, litigation skills would be crucial in many other dispute resolution processes (a court trial, arbitration, and an evaluative mediation), which would mean paying for at least one extra party for many more hours than with a facilitative mediator.

Example

To see the differences, while a facilitative mediation session might take about 3 hours, the same dispute might take about 3 months for an arbitration or evaluative mediation session, and a court case could take years. Imagine the difference in cost when paying for one mediator for 3 hours compared to paying for an arbitrator or evaluative mediator and a lawyer for three months.

Facilitative mediation can resolve complex, multi-party disputes

In addition, a facilitative mediator can resolve several cases at once. This might mean that several people sued each other in a very complex conflict might have interrelated conflicts and several stakeholders. It could also mean that the same people have sued each other several times. It could also mean that a company has several similar lawsuits about the same issue.

If mediation does not succeed, participants can get a second bite of the apple and try another dispute resolution process.

Keeping your options open: A low risk path toward resolution

The beauty of a facilitative approach is that participants can always choose a more expensive path later (e.g., hiring a facilitative mediator or neutral evaluator, trial in court, arbitration) if mediation does not result in an agreement. At least parties typically leave with a greater understanding of the other side and potentially a better relationship.

Addressing the root causes of conflict

While other forms of adversarial processes might address the legal side of a conflict, conflict may still persist even after participating in those types of conflict resolution processes.

Example

An arbitration or lawsuit resolves the legal dispute related to workplace discrimination. Even if the employer wins, such as on a technicality, gray area, or any other reason, the conflict may still persist between the former plaintiff and the employer. For instance, bias might have guided the employer's decision yet the arbitration decided it did not meet the legal threshold (severe or pervasive) enough to be considered harassment. At the same time, the action of the employer could have caused a lot of harm to the employee and damage the relationship between the employee and employer. Even if the complaints were not related to discrimination and instead were a product of poor leadership skills or bullying, an employer winning a discrimination complaint through arbitration, a lawsuit, or an evaluative mediation would not fix the toxic work environment or the fractured relationship between the employee and employer. However, facilitative mediation can address all conflicts (including the deeper issues), not just the conflicts over legal rights.

Beyond legal confines: Creating win-win solutions

​​In addition, facilitative mediators are not confined to what the law says. Facilitative mediators are able to solve complex multi-party conflicts that require elegant, win-win solutions. When outcomes are limited to only remedies a judge or arbitrator could order, this could lead to lose-lose outcomes, especially where all participants in mediation could agree to another solution.

Example

In a neighbor or roommate housing case, a court ruling might mean that both parties lose their housing or housing subsidies, or the underlying conflict goes unresolved because the case is dismissed on procedural grounds. However, with mediation, this might mean the parties stay in their housing yet learn to co-exist.

A facilitative mediator can help participants create win-win solutions because agreements limited to only those solutions a judge could provide can often lead to lose-lose outcomes (winning the battle but losing the war scenarios).

Example

If the parties have a long-term personal or business relationship, one party might be in the legal right, but such a settlement could mean the end of the relationship. The adversarial win-lose approach (especially if all parties are represented by legal counsel) often results in ill will between the parties where they could have both agreed to another solution they could both live with while maintaining a relationship they both wanted to keep. At the same time, top talent might leave, and recruitment may suffer when employees and applicants see how a company acts in litigation.