Facilitation is likely one the most powerful and effective skills to assist others (individuals or a group) to arrive at their own conclusion. Facilitation empowers stakeholders to actively participate in resolving their mutual or common goal. They are responsible for their contributions, understanding the views of the others and sharing responsibility for the outcome.
Facilitative Mediation is a formalised procedure of facilitation to assist parties in dispute to arrive at their own negotiated settlement.
The skill set in the “Facilitation Tool Box” match those of the “Mediation Tool Box”. More tools are required for the latter as the parties are in a dispute mode. The mediator has to act as a “neutral facilitator” to assist them to set out their common goals, reflect on their respective interests, needs and concerns and somehow, initiate dialogue conducive to resolving the differences the parties have perceiving the situation. At the same time encouraging the parties to recognise that a mutually acceptable resolution would be more beneficial than their continued disagreement.
These skills are most useful in our everyday lives at home, at work and at play. There is a wise Chinese saying “We get sick from what we ingest, we create crisis from what we speak” (病從口入, 禍從口出 - literal translation: “Disease from mouth in, calamity from mouth out”). How we frame our words can affect how others perceive us. We can actually create crisis or harmony by how we speak.
Take the case of the corporate partner Mike of a law firm who asked Jane, his litigation partner to draft a dispute resolution clause for a client . The clause provides for arbitration in Hong Kong using HKIAC (Hong Kong International Arbitration Centre) Domestic Rules. Mike is trying to convince Jane to amend it to a “mediate first then arbitrate” clause. They are debating this issue when John happens to walk by the pantry.
Mike: ”Jane, we all know that mediation has proven to be the most cost effective and efficient manner to resolve a dispute. Why can’t we just put a “mediate first” in there?”
Jane: “Mike, this can bind the client into a procedure they might not wish to have when a dispute happens!”
John walks into the pantry and both Mike and Jane looks at John as if they want him to speak his mind.
John: “Yes Jane, this can well happen. It’s always difficult to predict the future. What I would like to know Jane is if both parties
wish to mediate, how would that work?”
Jane proceeds to explain PD 31 (Practice Directions 31).
John: ”So both parties would have to agree to mediation or file written reasons why they feel that mediation is not suitable for this case.”
Jane: “Yes. The difficulty is that the party proposing mediation might be perceived as having a weaker case.”
Mike: “That is why a mediate clause makes sense!”
Jane: “But Mike, what if our client changes his mind and prefers to arbitrate ASAP?”
John: “Let me understand this more Jane. If under PF31, both parties have to agree to the mediation before it commences, then how would it work if there was a “mediate first” clause?
Jane: “They would also have to agree to the mediation.”
John: “Does that mean both parties have the right to change their minds regarding the use of mediation before arbitration?”
Jane and Mike simultaneously: “Yes of course!”
John: “What are your views Jane and Mike on the downside for our client if indeed there is a “mediate first”clause in the agreement?”
Jane: “I guess none at all. Because our client can always opt out!”
Mike: “Jane, you are brilliant! And if our client still believes that mediation would work, they can initiate mediation procedures without concern that the other side might perceive we have a weak case!”
Jane: “It seems like we only have an up- side without a down-side!”
Mike: “Yes! in fact both parties are in the same position. Up-side and no down-side with a “mediate first” clause! When do you think we can finish this new draft Jane?”
Jane: “30 minutes?” Mike: “Thanks Jane!”
John’s questions to both Mike and Jane shows the effectiveness of “open questions” which allow them to share some of their rationale and inner thoughts. What they hoped to achieve, what some of their concerns may have been. Their answers gave John more insight to pose ask further questions which encouraged both Mike and Jane to question their own logic and realities. As soon as Jane realised that there is no down-side for their client, her concerns were no longer relevant. Mike also realised that both parties would benefit from a “mediate first” clause without having to be bound by a mandatory mediation.
John did not judge either Mike or Jane positions but used neutral language which also encouraged them to work as a team. Their own analysis, encouraged by John’s questions, facilitated them to be more receptive to thoughts and ideas and this was more productive and effective than sticking with their own initial agenda.
Imagine how effective we could be using these same skills at home?
“We want our children to get better grades at school”
What if we reframed the same statement to a question that is open, mutual and neutral:
“How may we empower our children to work harder towards achieving their highest potential at school?”