COMMENTARY: Why facilitative mediation produces better ADR results

By Edmund J. Sikorski Jr.

The facilitative mediation has been described as: A process where “the mediator neither offers an opinion on the value of the case, nor recommends how it should be settled. Rather, the facilitative mediator assists the parties and their counsel through information interchange and creativity, to reach their own joint decision on a reasonable settlement or solution.” Cooley J. (2002 p. 18) Mediation Advocacy (2nd ed.) Notre Dame Ind. National Institute on Trial Advocacy.

MCR 2.410(2) provides the definition of mediation: “Mediation is process in which a neutral third party facilitates communication between parties, assists in identifying issues, and helps explore solutions to promote a mutually acceptable settlement. A mediator has no authoritative decision-making power.”

Standard I of the Model Standards of Conduct for Mediators (ABA August 2005) provides in pertinent part: “A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. ... B.  A mediator shall not undermine party self-determination by any party ...”

Facilitative mediator techniques include:

• Treating statements of positions as problems to be discussed rather than ultimate solutions.

• Facilitate disclosure of information by emphasizing that all of the parties must have all of the same information.

• Employing methodologies to bring monetary demands to manageable proportions.

• Focus on efforts to reveal all possible alternatives and combinations of those alternatives.

• Function as a cognitive negotiating coach to hold in check reactive intuitive emotional thinking and encourages thinking that is effective, thoughtful, and resists impulsivity.

Evaluative mediation is described as process where the neutral (mediator) helps the disputants evaluate their respective positions. It means that the neutral forms and expresses views regarding the dispute.

Evaluative mediation techniques include:

• An assessment of the success or failure of a single issue in the dispute.

• An assessment of the overall outcome of the case.

• Assessment of a numerical probability of success or failure.

• Predicting the value of an award.

This author suggests the notion of “neutrality” presents a contradiction for evaluative mediators. The moment a mediator articulates one or more of the assessments/ predictions above, the mediator is no longer neutral. We have another process for this in Michigan – it is called “Case Evaluation” pursuant to MCR 2.403.

There appears to be at least four flaws in the evaluative mediation process:

• The parties assume or want to believe that there is some level of accuracy in the mediator’s suggestions about what the future holds.

• The parties can use the mediator as a “bad cop” to sell the case to decision makers.

• The parties focus on trying to convince the mediator of the strengths of their case thus blending and confusing the mediator function with the arbitration function.

• Evaluative mediators encourage the parties to resign themselves to a settlement that both sides are unhappy with thus confusing the mediation process with the judicial settlement conference process.

Now there is new empirical research about mediation techniques published by the Maryland Administrative Office of Courts that makes the following recommendation:

“An important benefit to ADR is that the participants who reach agreements in ADR are less likely to return to court for an enforcement action, thus creating more efficiency in case processing in the District Court. The ADR strategies that best align with these goals are eliciting participant solutions and reflecting participants’ emotions and interests. Caucusing and ADR practitioners offering their opinions or solutions have effects that run counter to these goals. Therefore, this research indicates that the District Court ADR Office may wish to encourage and support ADR practices that focus on eliciting participants’ solutions and reflecting back to participants, and discourage strategies that are heavily focused on caucus and ADR practitioners offering their own solutions and opinions.”

At the Spring 2013 National Legal Malpractice Conference of the American Bar Association the panelist presented a work entitled “Settle and Sue Again: Strategies and Snares.”
Among the list of “Categories of Claims” were the following:

• Openly disgruntled ex-clients or current clients regretting deals they’ve made.

• Judicial award less than declined settlement offer.

• Forced to settle because attorney incompetent or unprepared.

• Client claims he/she did not understand or did not agree with what was happening.

• Post-mediation events the client did not see coming such as taxability of recovery, enforcement/collection process under settlement agreement, attorney fees charged to client, release language too narrow/broad.

• Lawyer becomes target for actions taken or not taken do any of a litany of actions or non-actions.

Judges, magistrates, referees, and arbitrators make decisions and tell lawyers and litigants what to do. Practicing attorneys make recommendations to their clients i.e. strongly suggest the client follow that course of action (tell the client what to do).

The entire concept of facilitative mediation is predicated on the theory that the mediator owns the process while the mediation participants own the result. The conduct of a fair and impartial process is central to the legitimacy of decisions reached and the individuals’ acceptance of those decisions.
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Edmund J. Sikorski Jr. is an approved Washtenaw County Civil Mediator. He can be reached at edsikorski3@gmail.com.