GROUP FACILITATION AND MEDIATION – WHY?

I have been a Group Facilitator and Mediator for nearly 28 years. When I started in the field in 1987, it was new to me and new to everyone I encountered. I was fortunate to have a sponsor for my training and early years of work in the field in Jefferson County, Colorado. The County retained me as a full-time mediator and facilitator for large land use proposals (mining operations, recreational sites, landfills, hazardous waste sites, etc.). It was a baptism of fire for a conflict resolution professional, but it allowed me to devote all of my professional energies to this fascinating field. As I gained more experience in the field and grew to respect the positive results of the process, I thought that more and more people in all walks of life would come around to using mediation as a way to solve all manner of conflicts. This has happened, but to a much more limited extent than I had hoped. Too many good mediators have left the field because they could not find enough clients. So, I would like to once more make the case for what has been come to be known as alternative dispute resolution or ADR (alternative because it does not follow the typical path of using confrontation in the courts – or other venues – to solve problems).

There are so many reasons for using ADR that I know I will not remember all of them, here. However, all of the reasons are compelling ones. Many of you reading this will probably say: “Why didn’t he list that reason?” All this tells me is that I am right. There is an overpowering need for this process in our world.

  • Group Facilitation and Mediation empower the participants. Typically, decisions are made by consensus, and everyone has buy-in. There is always give and take, but everyone owns some important piece of the solution. If a judge, arbitrator or some other official decision-maker tells everyone what to do, no one has buy-in (or at least, not much), and usually everyone resents the imposed solution.
  • Group Facilitation and Mediation are usually faster than other processes. Everyone can wait six months for a court date, or they can schedule mediation or a facilitated discussion for next week. If a solution is reached, a lot of time has been saved. If not, the court date is still there.
  • Group Facilitation and Mediation are organized processes. This is especially important for facilitated group meetings. Such a meeting can lose its way without a facilitator. A facilitator makes sure that the meeting has a clear agenda; all topics on the agenda are covered; no one is left out of the discussion; decisions are made in a way the group has previously agreed upon (often by consensus); and an accurate record of the group discussion and decisions is made both during and at the completion of the meeting.
  • Group Facilitation and Mediation “expand the pie”. Too often, formal processes limit discussion to one topic or a small group of topics, and the universe of possible solutions is very small. When people all sit down together to talk things through, brainstorming generates new topics for consideration and usually new solutions that are often radically “outside of the box”. I’ve often had judges tell me that the solution reached by parties in a small claims court mediation is one he/she would never have ordered based on interpretation of the law – but it was a great solution.
  • Group Facilitation and Mediation save money. It is often possible to engage a mediator before ever filing a court case or hiring an attorney. If parties in conflict decide to hire a mediator early on in their conflict, they can come together to reach agreement an pay only the cost of the mediator, thereby avoiding attorneys’ fees, court costs, and all of the monetary delays caused by the conflict dragging on for months. This is not to say that attorneys and their input to their clients is not often valuable during mediation.
  • Group Facilitation and Mediation can save relationships. Meeting together to come to a shared agreement over a conflict is a satisfying process. It allows people to really hear each other and understand other points of view. If friends, neighbors, business colleagues or family members are in conflict, arguments and lawsuits only drive them apart (sometimes forever). Reaching agreement in mediation can remind people of the value of their relationships while resolving their conflict – not to mention learning a new, more positive way of relating to each other.
  • Group Facilitation and Mediation provide Access to Justice. A self-represented (“pro se”) party typically feels at a disadvantage as compared to the other person in a dispute who may be represented by an attorney. Pro se parties often find completing and filing court forms to be daunting. I serve on our county’s Access to Justice Committee. There is broad consensus on that committee that mediation is a way for people to get justice, whether or not they have filed a court case.
  • Group Facilitation and Mediation feel fair to everyone involved. Over my 28 years in conflict resolution, I have heard from many people who say that their court-imposed settlement was simply “not fair”. However, the parties to a settlement reached in mediation are often not totally happy with the result, but they own the give and take involved in reaching it – and thus perceive it as fair.

As I said, these are only a few reasons to hire a Group Facilitator or Mediator to assist in resolving conflict between two people – or even among two hundred people. If you think you have need for these services to help resolve your conflict, you can contact me, Mark Loye, or call me at (303)704-3808. If you recognize yourself in some of the situations described in this article, I hope to hear from you, soon.

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GROUP FACILITATION AND MEDIATION – A Few Words about Neutrality, Part II

To continue the discussion about mediator neutrality (or impartiality – an equivalent term for purposes of this discussion), I’d like to now discuss the parties’ perception of a mediator’s neutrality.

It is always important to have an idea of how the parties view you, the mediator. If they initially view you as a non-neutral person (actually or potentially partial to one of the two or more sides to the dispute), you may be able to overcome this impression and proceed with the mediation – or you may not. Sometimes it is better not to even try.

The easiest of the situations is when you feel very sure the parties will have a bias against you as the mediator. I accepted an EEO mediation case from the U.S. Postal Service. When the paperwork arrived, I noted that the employee bringing the EEO action had a very unusual name (we’ll call him “Mr. X”). Within the last several weeks, I had mediated a small claims case with a party with the same name in another venue. The mediation had not resulted in a settlement, and I had the distinct impression that Mr. X strongly blamed me for that result. So, I called the person who had assigned the case to me. Without revealing any details, I said that I had reason to believe I had recently mediated a case with Mr.X and thought that he might not want me as a mediator again. I requested that Mr. X be asked if he had recently been in a mediation of any type and, if so, would he want that same mediator for his EEO case. As I suspected, when asked the question in that way, he said no, and I was replaced on the case. Although this resulted in a financial loss for me, I had no other ethical option.

For several years, I worked for a County government as a Mediator and Group Facilitator for large land rezoning proposals (mines, landfills, recreational sites, etc.). These always involved the developer/land owner and his/her attorneys and consultants vs. a host of objectors (nearby landowners, environmental and public interest groups, etc.). The county government staff was always involved in the negotiations. Although they considered themselves neutral, neither of the two major sides did. The developers saw them as in league with the opponents (their requirements being just another impediment to the proposal), and the opponents saw them as allies of the developer (after all, such a noxious proposal should have been immediately dismissed – not reviewed for possible approval). The County was paying me to be the “neutral” (because the opponents wouldn’t and the developer couldn’t) – so neither major side fully trusted me.

In this situation, I typically asked the parties for a provisional approval of me as their neutral. I pointed out that I had the advantage that my services were being provided to them for free by the County. Therefore, they could allow me to proceed for a while and “win my wings” with them – or not. Although it was sometimes tactically advantageous to attack me as the mediator during the process, I was always eventually accepted (albeit sometimes grudgingly) for the duration of the mediation/facilitation process. This experience helped me to learn that I must project my impartiality with all of my words and actions.

Subsequently, I was by a recreational district to conduct a public negotiation process related to the planned construction of a developed park (buildings, ball fields, tennis courts, parking) on land that had been traditionally undeveloped open space (although a park had been approved and planned for years). In this case, the recreational district did not have the credibility, on its own, to be trusted by everyone else to hire an impartial mediator. Once again, I was brought in, provisionally, to help the parties broker my own fee agreement. After an hour or so, a few representatives of the main groups agreed to split my fee three ways among the recreational district, an adjacent high-density homeowners group and an adjacent low density homeowners group. Given this arrangement, these three main groups were satisfied that my interests were not tied to any one side (and the results it might advocate). The parties who were involved, but not members of the three main groups were simply happy to have a paid neutral to manage the negotiations. I got paid, the facilitated negotiations proceeded, and, as it happened, a consensual agreement for the plan of the park was reached. Interestingly, during the entire process, no party challenged my neutrality.

So, in summary, party perception of a mediator’s neutrality can be tied to history, the mediator’s behavior (both initially and during the progress of the negotiations) and the breakdown of who pays for the mediator’s services. I know there are more factors, but these are three examples I have experienced during the last 27 years of being a professional “neutral”.

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