Moving from Adversarial to Collaborative Dispute Resolution Methods

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 today's complex world, conflicts are inevitable. They can arise at work, within families, or even between neighbors. Traditional methods of resolving disputes often rely on adversarial processes, such as litigation or arbitration. These approaches can lead to lengthy, costly outcomes, leaving parties feeling defeated or unheard. Even evaluative mediation, another common method, often operates within the adversarial framework. It focuses on resolving conflicts by pressuring parties into settling, highlighting weaknesses in their positions.

However, there is a more constructive approach: facilitative mediation. This method emphasizes constructive communication and collaboration, enabling parties to navigate their disputes more effectively.

What is Facilitative Mediation?

Facilitative mediation is a style of mediation that prioritizes collaboration among disputants. It fosters a constructive environment where communication flows freely. In facilitative mediation, the mediator plays a vital role but does not typically provide opinions. Instead, they encourage dialogue and creative problem-solving among the participants. This empowers everyone involved to explore their interests and work toward solutions that benefit all parties.

A key feature of facilitative mediation is that participants retain decision-making power. They decide what terms they can agree on and whether they want to settle. This autonomy allows for win-win solutions, as the focus is on improving communication rather than determining who is right or wrong. Conversations in facilitative mediation concentrate on present and future issues, promoting a forward-thinking approach to resolution.

Beyond Litigation Credentials: Why the Right Background Matters

Choosing the right mediator can significantly influence the outcome of a dispute. Facilitative mediators focus on the conversation rather than paperwork. They do not need to sift through mountains of evidence, which saves participants both time and money. Unfortunately, many mediators selected from large platforms lack essential conflict resolution skills. This is often due to the criteria used to evaluate potential mediators, which tend to emphasize litigation or judicial experience over conflict resolution expertise.

While litigation experience may be useful in some contexts, it can hinder facilitative mediators. Veteran litigators often adopt an evaluative approach, which can limit their ability to remain neutral. They may have difficulty transitioning from a role that involves making judgments to one that fosters open communication.

Benefits of Facilitative Mediation

When weighing the options, facilitative mediation often proves to be faster, cheaper, and more effective than evaluative mediation or litigation. Facilitative mediators do not concentrate on who is right or wrong; rather, they facilitate discussions to assess the potential for agreement. Preparing evidence can be costly. It incurs expenses for mediation and legal fees, along with the time participants spend gathering materials.

Moreover, because facilitative mediation focuses on participants' interests rather than legal positions, lawyers are not always necessary. This lack of legal involvement can lead to significant cost savings. In fact, some judges prefer to exclude attorneys from the mediation process, as their presence can sometimes obstruct resolutions. If legal counsel is included, they can review the final settlement but need not be part of the entire process.

Example

To illustrate, consider that a facilitative mediation session may take only three hours, whereas an evaluative mediation or arbitration may span three months, or even longer in court cases. The financial difference is stark when comparing a mediator's fees for a brief session versus the cumulative costs of hiring an arbitrator along with legal counsel over months.

Addressing Complex, Multi-Party Disputes

Facilitative mediators possess the flexibility to resolve multiple cases simultaneously. This capability is particularly useful in complex conflicts involving many parties or stakeholders. For instance, consider a situation where several parties are intertwined in a web of lawsuits. A facilitative mediator can streamline communication and promote resolutions that address the interests of all parties involved.

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

One of the significant advantages of facilitative mediation is that participants can always opt for traditional litigation or arbitration later if mediation fails. This approach presents minimal risk, as parties typically leave with enhanced understanding and potentially improved relationships. Even in cases where no agreement is reached, the dialogue helps clarify perspectives and can pave the way for future discussions.

Addressing the Root Causes of Conflict

Traditional adversarial processes may resolve legal matters but often overlook underlying issues. Persistent conflicts can remain even after these processes conclude. For instance, consider a case of workplace discrimination. A favorable ruling for the employer doesn't erase the potential bias or damaged relationships. Problems might stem from poor leadership or workplace bullying, which remain unresolved. This is where facilitative mediation shines; it delves into deeper issues, offering a holistic approach to conflict resolution.

Example

In a workplace discrimination situation, an arbitration ruling might determine that the employer did not violate legal standards, but the damage to the workplace relationship remains. Facilitative mediation can engage both parties in discussions that address these deeper concerns, facilitating mutual understanding.

Beyond Legal Confines: Creating Win-Win Solutions

Facilitative mediators are empowered to explore resolutions beyond strict legal confines. This creative flexibility enables participants to arrive at win-win solutions that benefit everyone involved. When outcomes are restricted to only the remedies a judge could impose, participants may find themselves at an impasse or in a lose-lose situation.

Example

Consider a case between neighbors or roommates. A court ruling might lead to both parties losing their housing or financial assistance, leaving underlying conflicts unresolved. Facilitative mediation, on the other hand, encourages cooperation and understanding, allowing both parties to maintain their housing while fostering coexistence.

In many instances, adversarial approaches may create lasting ill will between parties, especially when legal counsel is involved. Facilitative mediation, which encourages open dialogue, can often lead to the best outcomes by promoting relationships alongside resolutions.

In conclusion, transitioning from adversarial to collaborative dispute resolution methods like facilitative mediation can lead to more effective, meaningful resolutions to conflicts. By focusing on communication and mutual understanding, parties can find solutions that protect relationships and address the root causes of disputes. This shift not only saves time and money but also fosters a more cooperative environment in which individuals can thrive.