THE BASICS: Why Everyone Chooses Mediation, Facilitation and Negotiation

Quick recap:

Negotiation involves two or more parties getting together to come to an agreement regarding an issue they are facing without the help of any third parties like a mediator or a facilitator.


Mediation, is like negotiation except it involves the use of a third party neutral called a mediator.The mediator is trained in helping people open up, overcome impasses and deal with emotion or sensitive issues. The mediator without getting involved personally by taking any sides and is bound by confidentiality rules. 

Facilitation is like much the same as mediation except that it involves resolving issues among groups and not individuals.  In this instance the third party neutral (similar to a mediator) is called a facilitator.

So why do you need to know anything about mediation? Well, quite frankly, because many organizations - including the courts - are using it to resolve disputes.  You may call the police or take your case to court to try to find a solution.  But, in many cases these days, they first refer you to mediation.  Though you are not compelled to find a solution during mediation, understanding the "lay of the land" and how you can capitalize on it is always a good idea.

So, what are some of the major benefits of mediation and facilitation? Why are they growing in popularity among business, academic, government and legal institutions? If you look at most mediation websites, you will see answers like: 

1. It is an extremely cost effective method of merging interests and resolving differences.
2.  It is a relatively quick process (especially when compared to going to court).
3. It gives you the opportunity to craft a resolution that is right for you (instead of having one imposed on you by a third party like a judge).
4. It allowes for creative, informal, "outside the box" approach to problem solving.
5. It gives you a chance to avoid the stressful, drawn-out and extremely expensive litigation process.
6. It is a process that focuses on meeting the main interests of all the parties; so, in effect, everybody wins and nobody loses.
7. It allows you to maintain existing business or personal relationships while merging your interests or differences.

These reasons are all true.  However, the most important reason is that mediation and facilitation don't just focus on the specifics of the conflict in front of them.  They also look to the parties who are in conflict and ask the question: " Why are the positions taken by each side so important to them?" In answering this question, the look to the underlying concerns shown in the circle of conflict chart below.  These includes the parties values, relationships, externals/moods, interests, structure and data.  

We'll look at these things in more detail in succeeding blog posts.   But for now, it is important to note that a skilled mediator/facilitator is not there to tell people how to solve their problems.  But by taking the time to understand the underlying concerns in the circle of conflict chart above, he/she is able to help the parties focus on solutions that that they believe will best fit these needs. So, at the end, when they finally craft a resolution, the parties are more willing to stick to it because they 

THE BASICS SERIES: ADR = Mediation, Facilitation and Negotiation

ADR is a general term encompassing various techniques for resolving conflict outside of the court system.  Though the term technically includes arbitration, thi blog will focus mainly on mediation, facilitation and negotiation.  So lets define each of these terms. 


Simply put, in mediation, the people involved in a dispute get together with another person called a mediator or a neutral and try to figure out a solution to their problems on their own.  The mediator is trained in helping people open up, overcome impasses and deal with emotion or sensitive issues. The mediator without getting involved personally by taking any sides and is bound by confidentiality rules. That means, any information divulged during the mediation cannot be used against another party if legal action were to occur in the future.  


Facilitation is pretty much the same as mediation except that you are trying to resolve disputes among groups and not just individuals.  Today we are seeing a growing trend among employers to have facilitation sessions with their employees even though there is no active ongoing conflict.  It just gives people a chance to get together to share ideas, discuss differing opinions and clear the air regarding any concerns that may potentially lead to future conflict.  In these sessions, the trained neutral is usually referred to as a facilitator.

We all know what negotiation is i.e. differing parties getting together to come to an agreement without the help of any third parties like a mediator or a facilitator.  One may ask why do we need mediators or facilitators when we all know how to negotiate?! After all, we: (i) got together with a dealer to buy or cars; (ii) we get together with our landlord to rent our homes; and (iii) we negotiated a raise and/or a promotion with our boss quite successfully on our own.


The answer is mediation and facilitation takes negotiation to an art.  The techniques imparted ensures that the deal you end up with will make you happy in the end because the focus will be on meeting your most important interest.  So, for example if your negotiation position is that you want an orange because you want orange juice, mediation and facilitation will teach you to let go of the negotiation position that 'i need an orange' to 'i want orange juice'.  the former is simply a negotiation position while the latter is the interest or need you want fulfilled.  As such, in a mediation you will be willing to relinquish the orange if the other party offers to simply give you orange juice without an orange. 

This blog will also focus on the various types of mediation, facilitation and negotiation techniques and systems are appropriate for different situations, parties and organizations. 

THE BASICS: Going to Court Is Really Not The Best Way To Solve Your Problems

Know anyone who is a lawyer? They will confirm that just about everyone they meet has an issue for which they need legal advice.  Whether it is with their employer (or employee), their business partners, their customers, it really doesn't matter.  Even adolescents oftentimes want to know what legal rights they have against their parents, teachers and school.


So, why does it seem as if everyone wants to sue everyone else? Well, the answer, in a word is 'conflict'. When we think of conflict, the words: disagreement, argument, fight, struggle, discord, antagonism, etc. come to mind.  But even without a thesaurus or dictionary close by, we all know what conflict is - we experience in just about every relationship we ever had - whether it is with our parents, spouse, children, colleagues, classmates, boss - it really doesn't matter.  Conflict is a normal part of human relationships.  And, in America, when people think of how they can resolve their conflict, the first thought that comes to mind is to take them to court.


Unfortunately, the legal system is not particularly efficient when it comes to resolving everyday conflict.  First of all, for the most part it takes a long time to bring and resolve a lawsuit.  Second, there is a cost factor - lawyers are not cheap. Third, courts take away an individual's ability to craft their own resolution.  After, in court a judge or a jury decides who wins and who loses.  Finally, there just may not may any legal recourse available for the kind of conflict that you are involved with... say for example, a parent versus a teen, or students in a high school, or issues regarding noise complaints among neighbors.  However, we all know that the lack of a legal recourse does not mean that the problem goes away --- it just continues to escalate until it reaches a breaking point.


The chart below shows how conflict will increase in intensity over time until individuals start hurting each other - or "start acting out." It is at the height of the conflict that most people start looking around for a solution.  That means we see people try to negotiate with each other or find some other kind of dispute settlement process like the courts to resolve the issue.  As such, we see the conflict decreasing.

But look at some of the outcomes in a typical conflict situation: (i) if it a dispute among employees one person may end up getting fired; (ii) at school, students can be subjected to suspensions or maybe even expulsions; (iii) a dispute among neighbors may escalate to the point of physical violence and monetary damages are assessed by the courts; and (iv) parent-teen disputes may lead to having social services involved or sometimes even the police... These are just a few examples of the solutions that are likely to occur when we take a litigious approach to dispute resolution.  Remember in the court system: one person wins and the other loses and the judge (or jury) makes the decision.


This is where Alternative Dispute Resolution steps in. ADR is a general term encompassing various techniques for resolving conflict outside of the court system.  Though the term technically includes arbitration, thi blog will focus mainly on mediation, facilitation and negotiation.  In the next I will define each of these terms. 

This is just an overview of what this blog will be about so welcome aboard!