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A Critical reflection on Mediation and Facilation Practice
by John O'Leary
Miller Du Toit Cloete Family Law Conference March 2009
In this paper I will discuss two issues. The first is to highlight some assumptions about mediation which often guide the work of mediators but which may not in fact be correct. The second part of the paper deals with the specific issue of post divorce dispute resolution, in particular the facilitation clauses often incorporated in consent papers in the Cape Provincial Division of the High Court.
ARE THE ASSUMPTIONS MEDIATORS MAKE ABOUT MEDIATION CORRECT?
In his book Beyond Neutrality, Bernard Mayer (1) analyses ten beliefs or assumptions that mediators often make and which he argues may not, in fact, be correct.
1. “We are neutral third party conflict resolvers”
This notion implies that we act as neutral and impartial brokers of settlement negotiations in a procedural sense. Mayer suggests that most conflicts are in fact resolved by the provision of “third side” resources such as “provider, teacher, bridge builder, mediator, arbiter, equalizer, healer, witness, referee and peacekeeper” (2) Some of these resources are often part of what a mediator provides, but do not necessarily compromise impartiality. Mayer talks about “helping people to engage in conflict by serving as advocates, coaches, advisers, and representatives.” (3)
2. “Competition is bad; Cooperation is good”
Much of our talk about mediation suggests that competition is bad and co-operation is good. But competition can be constructive when participants are ‘wise, informed, skillful and ethical’ (4). As Mayer puts it “One of the greatest gifts conflict resolvers can give to people in conflict is to assist them in competing constructively when competition is appropriate”.
3. “Our goal is a win-win solution”
“To go too quickly and blithely to the win-win options can often fly in the face of people’s emotional reality”.
The issue here is that it can undermine the mediation process if mediators emphasise “win-win” solutions at a stage in the mediation when the participants are conscious only of loss. Only when they are generating options and solutions which could result in a resolution that is in fact in the interests of all direct and indirect participants would it be wise to use “win-win” language.
“An unrealistic, premature, naïve or exclusive focus on the win-win or integrative potential of conflict does not move serious conflicts forward.” (5)
4. “Interests are in; Positions are out”
We tend to train new mediators to focus on interests and cajole participants in a conflict to avoid positional bargaining, but this may not be helpful. It is often important for participants to generate options by testing proposals even if the proposals are made simply to test the water rather than with underlying interests in mind.
5. “Constructive communication is more important than passionate advocacy”
Do we spend too much time stopping people from passionately advocating something in a negotiation on the grounds that it is preventing them from communicating constructively?
Mayer argues that effective negotiation may be undermined or prolonged if the participants are prevented from strongly advocating things that they feel strongly about. Clearly the reaction to the advocacy would have to be well managed, but this does not mean it should not happen.
6. “Respect trumps anger”
Respect is not the same thing as not showing anger. “In the name of showing respect we may fail to honour and allow space for the deep anger… rage, hurt and fear that people are experiencing” (6)
7. “ mediation means minimal substantive influence”
We have made too much of the distinction between the process realm and the substantive realm; “Process and substance are inextricably linked” (7)
There is little doubt that participants will accord a mediator greater authority if he or she is knowledgeable and experienced in the field that the dispute concerns. There has been a tendency among mediators to assert that no knowledge of the substance or content of the dispute is necessary to effectively mediate, because the mediator is only concerned with managing the process. I think we are now at a point where it is clear that knowledge and expertise in a field is an advantage for effective mediation. This has been argued in Urska Velikonja’s article Making Peace and Making Money: Economic analysis of the market for mediators in private practice http://works.bepress.com/urska_velikonja/1/
8. “Good relationships are our goal; Adversaries are a problem”
When to engage and when to avoid conflict reflects the stage participants are at in a conflict – sometimes they need to be adversarial to move the conflict. The point here is simply a reminder that the goal of mediation is an effective resolution of the conflict, not necessarily the establishment of harmonious relationships.
9. “We offer a level playing field”
This may not be helpful language – the inequalities outside of the mediation process have a great impact on what happens in the process, particularly in relation to confidentiality, equality and safety (8).
For example, a participant may have been advised to enter into mediation with the deliberate intention of abusing the process to gain a strategic advantage. If it becomes apparent that this is happening it may be very difficult for a mediator to address this problem effectively if too much emphasis has been placed on the notion of level playing fields in a situation where the playing fields are clearly not level.
10. “Conflict resolution is a process”
“What disputants need from conflict resolvers is more than process: they need understanding, engagement, creativity, strength, wisdom, strategic thinking, confrontation, patience, encouragement, humour, courage and a host of other qualities that are not only about process or substance.” (9)
These reflections challenge mediators to carefully examine their assumptions about mediation and to remember that it is a complex and multi-layered intervention which requires continuous critical reflection.
POST DIVORCE DISPUTE RESOLUTION
In the light of the above discussion around the assumptions that mediators make, it is useful to look at a specific example of a creative approach to post divorce dispute resolution that is now commonly adopted in consent papers which are made orders of court in the Cape Provincial Division of the High Court.
The typical clause provides for the appointment of a facilitator to resolve post divorce disputes. The facilitator is generally required to be a psychologist, lawyer or social worker with at least three years’ experience. The clause usually provides for the facilitator to be appointed by agreement between the parties and if the parties cannot reach agreement on the identity of the facilitator then provision is made for the facilitator to be appointed by the chair person for the time being of a mediation association active in the area, in our case the Family Mediators Association of the Cape (FAMAC).
The clause sets out the duties and powers of the facilitator in regard to the following issues:
• Written referral of disputes;
• Mediation before making directives;
• Refusal of trivial or unfounded referrals;
• Obligation on parties to participate;
• Facilitator may consult other collateral sources;
• Directives not privileged;
• Communication with representatives;
• Appointment of other persons whose expertise is required;
• Preserve privacy of the family;
• Payment of the costs of the facilitator;
It is important to note that most provisions make it clear that the facilitator will first attempt to resolve any dispute through mediation and if mediation does not succeed then the facilitator will have the power to make directives which will be binding on the parties until such time as a court having jurisdiction finds that the directive was not in the best interests of the children.
Paragraph 1.5 of the model clause is very important when considering the underlying principles of the facilitation concept. The facilitator is not appointed as psychotherapist, counselor or legal representative for the children or either of the parties. The parties have the right to consult appropriate people as and when necessary. This paragraph makes it clear that when the facilitator has to issue a directive, he or she does so based on his or her professional opinion and shall not act in a quasi-judicial capacity nor shall he or she act as an arbitrator.
Late in 2008 a party who was bound to participate in a facilitation process in terms of her settlement agreement which had been made an order of court instructed her attorney to object to a directive by a facilitator on the basis that the facilitation process itself was contrary to Section 2 of the Arbitration Act 42 of 1965 in that the matter dealt with by the facilitator that which forms the subject of the facilitators directive was a matter incidental to a matrimonial cause.
FAMAC obtained an opinion from senior counsel on the question of whether the facilitation clauses were contrary to the Arbitration Act. Counsel concluded that facilitators as understood in these orders are acting as experts and not as arbitrators. An individual appointed as an expert is not subject to the Arbitration Act and that the nature of the appointment was such that the facilitator did not have to act in a quasi-judicial capacity.
This is so because the facilitator is not required to afford the parties a hearing before issuing the directive – his or her directive is based on his or her own experience and expertise, research, discussions with fellow professionals, meetings with all parties concerned and the assistance of a co-facilitator if there is one.
In addition, contrary to arbitration, the directive is not final and binding in the same sense that an arbitration award is – the directive is binding on the parties until set aside by a court.
In the opinion obtained counsel recommended the use a term other than “facilitator”, on the grounds that “It appears, if not contradictory, at least inconsistent, to contend that a dispute which cannot be mediated, is thereafter “facilitated” by issuing directives and recommendations or making decisions”. His reason for arguing this position is that the New Oxford Dictionary of English (2) describes the word “facilitate” as “make (an action or process) easy or easier”, and as he sees it the nature of the process is different.
I am not convinced that his advice that a term other than “facilitation” be used is correct. It would be useful to debate this point in discussion at this conference. I think that the profile of people who use facilitation services are, by and large, high conflict parties who have not effectively separated at the time of divorce. The phone calls we get for the appointment of a facilitator are invariably desperate cries for help in resolving unfinished business. From the perspective of the parties, they definitely do experience the exercise as making things easier.
Of course there are exceptions, but most facilitations either result in a mediated outcome or a directive which the parties accept until their conflict escalates again and a further intervention is required. I believe that the term facilitation is appropriate given the nature of what happens. The caveat is that agreements and orders should make it clear that the person acts as an expert and not as an arbitrator.
It may be important to conclude on a note of caution: it is very easy for legal representatives and judicial officers at the time of concluding settlement agreements and having them made orders of court to kick for touch when issues become very difficult to resolve and to simply say that unresolved issues should be resolved by a facilitator. The role of the facilitator can be abused in this way, and I believe it is the responsibility of practitioners to advise their clients prior to concluding such agreements that unresolved issues should be mediated before the agreement is concluded. This would then result in fewer unresolved conflicts living on past the divorce, and it would also mean that only issues which genuinely require facilitation are dealt with in that way.
Finally, I also believe that the model clause should more clearly emphasise the commitment of the parties to mediate their disputes prior to using facilitation. This point is made in the model clause, but I think it should have greater emphasis at the beginning of the clause.
I have attached for your interest a copy of a typical facilitation clause. This is also available of the Family Mediators’ Association of the Cape website www.famac.co.za under “resources”, “documents”, “dispute resolution”.
(1) Beyond Neutrality Bernard S Mayer Jossey Bass 2004
(2) Ury 2000
(3) Mayer 117
(4) Mayer 123
(5) Mayer 124, 125
(6) Mayer 133
(7) Mayer 136
(8) Mayer 142
(9) Mayer 146
(10) 1998 Edition
John O’Leary
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www.walkers.co.za
021 4641400 (landline)
021 4622256 (fax)
Below is an example of a clause which can be used in consent papers to provide for resolution of post-divorce disputes by a facilitator (acting as an expert and not as an arbitrator)
Version December 2008
DISPUTE RESOLUTION
1. In order to resolve disputes arising from the parties’ exercising their parental rights and responsibilities as specified in this agreement, the parties agree that a facilitator be appointed to resolve disputes by mediation, or, if mediation is not successful, by making directives as a facilitator in accordance with the following:
1.1 The facilitator, who shall act as an expert and not as an arbitrator, shall be a mediator who has been accredited for at least three years by the Family Mediators’ Association of the Cape (FAMAC) or its successor in title, or who is recognised by the chairperson for the time being of FAMAC as having the requisite expertise. The facilitator shall be appointed by agreement between the parties, failing which either party, or the parties jointly, may in writing request the chairperson for the time being of FAMAC to appoint a facilitator;
1.2 The facilitator shall continue to act until he/she resigns, or both parties agree in writing that his/her appointment shall be terminated, or his/her appointment is terminated by an order of a Court having jurisdiction. If the facilitator’s appointment is terminated or he/she resigns, he/she shall be substituted by another facilitator appointed in accordance with the terms of this Agreement.
1.3 If the parties are unable to reach agreement on any issue concerning the children’s best interests and/or any issue where a joint decision is required in respect of the children, the dispute shall be formulated in writing and referred to the facilitator who shall attempt to resolve the dispute by way of mediation as speedily as possible:
1.3.1 If the facilitator, in the exercise of his/her sole discretion, regards a particular issue raised by one of the parties as trivial or unfounded, he/she is authorised to decline the referral of such issue;
1.3.2 If the facilitator is unable to resolve a dispute by way of mediation he/she may resolve the dispute by issuing a directive which shall be binding on the parties subject to the provisions herein (especially but not limited to paragraph 1.4.3 below);
1.3.3 Each party and the children (if necessary) shall participate in the dispute resolution process as requested by the facilitator;
1.3.4 The facilitator shall use his/her discretion in considering the weight and sufficiency of information provided and may expand their enquiry as they deem necessary. Each party agrees to give the facilitator the power to gather information through interviews, correspondence, email, telephonic and/or other informal means, and to make his/her recommendations upon the information provided and obtained;
1.3.5 No record need be kept of the findings, decisions and recommendations of the facilitator and the grounds therefor. No communications made by the facilitator in issuing directives shall be deemed to be privileged as to the Court, the participants, their legal representatives and other s or any mental health professionals assessing or treating the children;
1.3.6 The facilitator shall determine the protocol of all communications, interviews and sessions, including who shall or may attend meetings. Legal representatives shall not be entitled to attend such meetings, but a party shall be permitted to caucus privately with his or her legal representatives, either in person or by telephone, during such meetings. The parties and their attorneys shall have the right to initiate or receive communication with the facilitator. Any party or counsellor may communicate in writing with the facilitator provided that copies are provided to the other party, and if applicable, their legal representatives;
1.3.7 The facilitator may confer individually with the parties and with others, including step-family members, extended family members and friends, permanent life partners, household members, school and educational personnel, care providers, healthcare providers for the children and therapists for the children and the parties, and the parties authorise such persons to provide information to the facilitators;
1.3.8 The facilitator is authorised to appoint such other person as may be deemed by the facilitator necessary in order for the facilitator to make a decision in respect of the issue in dispute.
1.4 The facilitator is authorised to
1.4.1 Mediate joint decisions in respect of the children having regard to the best interests of the children;
1.4.2 Regulate, facilitate and review the contact arrangements in respect of the children having regard to their best interests;
1.4.3 Issue directives binding on the parties on any issue concerning the children’s welfare and/or affecting their best interests which directive shall be binding on the parties unless or until a Court of competent jurisdiction holds that such directive is not in the children’s best interests;
1.4.4 Resolve conflicts relating to the clarification, implementation and adaptation of this agreement or any subsequent parental responsibilities and rights agreement having regard to the best interests of the children;
1.4.5 Require the parties and/or the children to participate in psychological or other evaluations or assessments.
1.5 The facilitator shall, when required to issue directives, do so based on his/her professional opinion and shall not act in a quasi-judicial capacity nor shall he/she act as an arbitrator. The facilitator is not appointed as psychotherapist, counsellor or legal representative for the children or either of the parties. The parties record that they are aware of their right to consult appropriate professionals in these fields as and when necessary.
1.6 All participants, including the facilitator, the parties and legal representatives, shall use their best efforts to preserve the privacy of the family and, more particularly, the children and restrict dissemination of information related to decisions to those who need to know the information.
1.7 Neither party may initiate Court proceedings for the removal of the facilitators or to bring the Court’s attention to any grievances regarding the performance or actions of the facilitator without first setting out the grievance in writing, making copies available to the other party and the facilitator, and then meeting and conferring with the facilitator in an effort to resolve the grievance. If after such a meeting the matter remains unresolved and Court proceedings are initiated, a copy of such proceedings must be delivered to the facilitator personally and the party initiating the proceedings shall be required to furnish written proof to the Court that this has been done.
1.8 In the event that a party fails to participate in any dispute resolution process despite having been requested to do so by the facilitator, or fails to attend a dispute resolution session, or fails to reply to the facilitator’s communications within five days, which communications may be by telephone, email or fax, or fails to pay the facilitator’s costs upon request, or fails to co-operate in the dispute resolution process in any other way, the facilitator shall proceed with the dispute resolution process in the absence of that party. In such circumstances the facilitator shall be entitled to issue a directive and his/her decision shall be binding on both parties until such decision has been varied by a court of competent jurisdiction.
1.9 Each party shall be liable for one half of the costs of the facilitator, unless otherwise determined by the facilitator. The facilitator shall be empowered to direct that a party shall refund the costs of the dispute resolution process, or part thereof, to the other party in appropriate cases. The facilitator may decline to convene meetings or to issue directives until such time as his / her costs and the costs of any other person appointed in terms of 1.3.8 above have been paid.
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