GROUP FACILITATION & MEDIATION: “We just need a good attorney who knows all about this stuff to mediate for us.” NO YOU DON’T!

A couple of weeks ago, I was contacted by an attorney for a party to a conflict involving land and water issues. She had been referred to me by a husband and wife who were long-time colleagues of mine. He is an environmental and public policy attorney and had seen me in action on more than one complex environmental case and was obviously impressed with my skills as a Group Facilitator and Mediator. She is a former volunteer mediator with Jefferson County Mediation Services (I am the Executive Director of this community mediation program) and has worked with me on conflict resolution trainings in schools. So, they were a reliable referral source for the attorney who contacted me about being the mediator for her case. Furthermore, she had already visited by website, and was satisfied with my nearly 30 years of experience in this field. At the end of our conversation, she told me she was going to contact the other two sides to the conflict (one of which was a municipal government) and ask for their approval for me to be their mediator. Since this conflict was right in my professional wheelhouse, I was understandably excited by the prospect of mediating this case.

A few days later, she contacted me again to tell me that the other two sides to the conflict had rejected me as the mediator because they needed a “good water attorney” to mediate the case, and she could not move them from that position. She said she was sorry things had turned out this way and hoped to use my services in the future. I hope she will have occasion to do so.

This little story speaks volumes about the basic misunderstanding most people have about what we as conflict resolution professionals do. We do not provide contextual knowledge about a situation – that’s what hired consultants are there to do. We do not provide legal advice – that’s what each party’s attorney is there to do. We don’t provide authoritative reality checking to the parties (as some retired judges do when they “mediate” a case – in essence a forced settlement conference) – that’s what those same attorneys are there to do. If they didn’t know about the particular set of laws and regulations applicable to the conflict in question, the attorneys shouldn’t have taken their client’s case in the first place.

So, what do we mediators and facilitators provide? We are experts (after nearly 30 years of successful practice, I guess I can call myself that) in helping parties to ferret out what the real issues are, and what they really want and need in order to reach a mutually acceptable settlement to their dispute. To do that, I reach into my conflict resolution toolbox to first give parties a safe space in which to discuss their issues. From the attorneys’ perspective, I am the arbiter of the process, much as a judge is the arbiter of the outcome. I then use my hard-won skills to assist the parties (and, if present, their attorneys and technical consultants) in communicating with each other about the things that are important to them in a constructive way. This kind of professionally assisted dialogue, more often than not, results in an agreement to which everyone involved has contributed (and which, later on, they will uphold and defend because it’s theirs)   I (and my professional colleagues) bring the crucial element to the conflict resolution room – the skill set to help everyone truly communicate and have individual and collective ownership of any decisions reached.

Although I was originally educated to be a research scientist in the environmental field, over my long career as a Group Facilitator and Mediator, I have worked on conflicts involving business contracts, discrimination allegations (as a 20-year mediator with the U. S. Postal Service), real estate, family dynamics, workplace issues, and, yes, environmental and public policy conflicts (some of these cases going on for months or years). I am able, as are my many colleagues in this field, to adapt my varied skill set to the conflict at hand.

In summary, conflict resolution professional bring their own highly adaptable expertise to the conflict table, and those skills, by themselves, deserve respect. I think the parties and attorneys in the case I described earlier in this narrative missed out on an opportunity to use a well-seasoned Mediator and Group Facilitator to give them a great chance to reach a positive and lasting resolution to their conflict.

How a Regulator became a Mediator and Facilitator – And Why It’s Better!

In 1979, I was hired, fresh out of graduate school with an MS degree in Systems Ecology, by the Mined Land Reclamation Division of the Colorado Department of Natural Resources. I was a “Reclamation Specialist”. Over the next eight years, I advanced to the level of a “Senior Reclamation Specialist” in charge of a small staff of other similar professionals who oversaw the permitting and regulation of all of the known non-coal mines in the south half of Colorado. I reported to a chain of command that included a Division Director and a Mined Land Reclamation Board (as appointed by the Governor), which had a public meeting on a monthly basis. My duties included supervision of my staff of three specialists who reviewed reclamation permit applications from mining companies; visited mines in the field to check for compliance with their permit requirements, finding unpermitted mining operations and consulting with miners on the best way to comply with their permits and making presentations to the monthly meetings of the Board, whose members had to rule on all of our activities. I not only supervised these activities, I engaged in all of them myself. We were always busy. In short, I was an environmental regulator.

In the culture in which I worked, the “regulator’s regulator” was someone who was diligent in finding those who did not comply with the detailed regulations (whether by total non-compliance – mining without a permit – or by falling short of the standards defined by regulation and their permit) and making sure the miscreants were found, cited, fined and perhaps even closed down under a cease and desist order issued by the Board. Suffice to say that regulators who lived strictly by that code were not especially popular among the mining operators. The miners’ cooperation level with these regulators was low, and they did their best to hide any mistakes. In my opinion, then and now, this made for poorer compliance by the miners and more work (and stress) for the regulators.

So, I did my job in a different way. I decided to cultivate a cooperative relationship with the miners whom I regulated (and encouraged the same among my subordinates). I worked with them to craft permit conditions which fit within the somewhat wide range of our regulations and tried my best to help them correct less than major violations when I was in the field, without recommending the issuance of a violation (which typically was accompanied by at least a fine). One result was that the miners did not typically try to hide things from me, and I was not forced to simply tell people what to do. We worked together protect the environment, while allowing the mining of sand and gravel, gold, silver, uranium, molybdenum, etc. to proceed. I realized that I wasn’t exactly a regulator – I was someone else. Not surprisingly, my rise in the hierarchy of Mined Land Reclamation stopped at the Senior Specialist level.

Then, in 1987, Jefferson County, Colorado offered me the chance to use my collaboration skills to actually be that facilitator in the middle! I was offered (and accepted) the position of “Aggregate Coordinator” – a person who would facilitate discussions among existing and potential mining operators in the County, the County planners who would regulate them through zoning regulations and the citizens opposing (or , at least, interested in) those mining operations. The County paid for my environmental mediation training and put me to work helping its citizens find their own solutions to critical land use issues (or, if no consensus solutions were found, clarify the vital issues surrounding these mines so that the Board of County Commissioners could make informed decisions). People liked the process, even when win-win solutions did not emerge from it. Participants were empowered, and no one felt like he/she was simply being told what to do.

The career change for me was profound – and I never looked back! I have now spent 28 years helping people find their own way, not telling them what to do and threatening them with sanctions. This is a better way to do business for land use proposals, and every other area of human interaction where conflict is endemic. This experience has allowed me to expand my conflict resolution work to group facilitation (non-profit Board retreats, public policy committees, etc.), workplace mediation (discrimination mediation for the U.S. Postal Service’s REDRESS program, workgroup mediation for the Bureau of Land Management, etc.), contract dispute mediation (attorneys often bring me in to help clients settle out of court) real estate disputes (e.g., earnest money disputes) and many other areas of human interaction – while still working, whenever I can, in the environmental and public policy arena.

So, in the end, my philosophy I developed as a “Reclamation Specialist” – a regulator, allowed me to find the career to which I was most suited. I have spent a fulfilling new career as that person who helps people find their own paths forward, not someone who limits their choices by regulations, threats and sanctions. This is truly a better way!