What Facilitation is and When it is Used
When parties are at odds with one another, getting them to disclose all information necessary for resolution can prove challenging. Facilitation is a type of Alternative Dispute Resolution that uses various techniques to enhance and improve the information that is available during a negotiation, so that parties are better able to reach a mutually acceptable agreement. Unlike a mediator, who is concerned primarily with reaching a resolution, a facilitator focuses on the process rather than the outcome. As explained by the Equal Employment Opportunity Commission’s Alternative Dispute Resolution Center, the role of the facilitator is to assist all participants with the procedural aspects of ADR, including ensuring the availability of necessary data and working with each side to use problem-solving tactics.[1] Through the facilitation process, the group is encouraged to reach its own decision.[2]
There are two types of situations where facilitation is common. The first involves a group that is trying to settle an internal dispute. The facilitator is brought into the organization for the purpose of guiding the members through the process of reaching a resolution. This may occur, for example, in a corporation where there is a dispute between management and the workforce regarding salaries or benefits or may be between different departments within the company. It may also be used in non-business environments, like professional associations or decision-making boards. For internal disputes, a facilitator is brought in to meet with all parties to the conflict and guide them through various conflict-solving exercises, so that the parties work collaboratively in reaching a resolution.[3]
The second type of commonly-used facilitation involves preparing each side of a conflict for outside mediation. This type of facilitation is especially useful for conflicts where past mediation attempts have been unsuccessful. Each side of the conflict works with a facilitator to clarify its position and establish a goal. When the opposing sides return for mediation, they are better prepared to negotiate and reach a resolution.
This type of facilitation is also useful for conflicts where each side has multiple interests involved. Under this scenario, there may be some internal conflicts that are impeding parties from effectively participating in the mediation process. The facilitator meets with each side individually to identify and work through those internal conflicts, while also gathering any necessary documentation that will ultimately be of assistance in the mediation. The goal is to build a consensus within each party that will make the next mediation attempt more effective, organized and conducive to resolution.
The exchange and availability of relevant information is also a key aspect of facilitation, which is why it is commonly used in international politics, where nations dispute each other.[4] For example, trade facilitation is a tactic for simplifying the trade of goods and services between countries.[5] It works by encouraging national governments to disclose their import and export procedures. The hope is that the availability of necessary information will make negotiations smoother and more productive.[6] As stated by the United Nations Trade Facilitation Implementation Guide, “Trade facilitation has emerged as a key factor for international trade efficiency and the economic development of countries.”[7]
Facilitation Tools and Strategies
Facilitators use various strategies to encourage collaboration and consensus building within groups. Their chief functions are to clarify areas of confusion and identify areas of commonality, but facilitators also ensure that every participant gets a chance to be heard and works to build relationships within the group.[8] Some common tactics used in facilitation include brain-storming, flow-charting, multi-voting, and consensus-building.
Brain-storming is often the first step in conducting an effective facilitation.[9] It is a way of stimulating ideas within the group. The facilitator communicates the general objective of the brain-storming session and then gives the group a limited amount of time to come up with ideas that further the stated objective. Brainstorming can be done in a variety of ways. “Round robin” is a method where participants take turns sharing their ideas for discussion. “Freewheeling” allows participants to throw out ideas to the group in a less structured way. With the “slip method,” each participant writes her ideas on a slip of paper and passes it to the facilitator who then presents each idea anonymously for discussion. It is ultimately up to the facilitator to determine which method of brainstorming is most appropriate.
“Flow-charting” is a method of accumulating resolution ideas in an organized manner.[10] It works by outlining the process for reaching a desired outcome. The facilitator identifies the major steps and then works with the participants to lay out the actions that are necessary to move from one step to the next until a resolution is reached.
“Multi-voting” is a process where a series of votes is used to reduce a wide range of options down to a limited number.[11] It starts with the facilitator asking each participant to write down one request. The facilitator then reviews the answers and groups them by similarity to form a more concise list. The facilitator then has all of the participants vote on which three are most important. The top three vote getters become the group’s finalized list of requests. If there is no clear top three, the facilitator may narrow down the choices based on the votes and repeat the process until the desired number of options is reached. With multi-voting, the parties are able to reach some level of agreement, while still considering the concerns of each person.
“Consensus building” is another facilitation strategy. The goal is to find an idea or request that all group members are willing to accept as the best approach for the group as a whole, even though they do not all agree on the specifics. The process is very similar to multi-voting, starting with a list of each person’s position. Instead of voting for a top three, the facilitator calls for a consensus vote on each idea. The facilitator asks whether participants are at least 80% in agreement with the presented idea. The process repeats, with the list of ideas being narrowed down until 100% of the team states that they are in 80% agreement with a single proposition.[12]
Facilitation processes vary greatly, depending on the number of participants and the subject matter of the disagreement. For complex cases, or those involving many participants, facilitation make take place on many occasions and in various locations. The facilitator analyzes the situation and determines the best option for the most effective process. He may decide to divide a large group into smaller sub-groups with similar interests, so that all voices are more easily heard. If verbal communication has proven ineffective, the facilitator may decide that written communications may be the best strategy. Under these circumstances, participants will write down their thoughts and ideas for presentation to the group anonymously.
Becoming a Facilitator
There is no single process for becoming a facilitator and there are numerous avenues for employment in this area of ADR. Some colleges and universities offer ADR courses that focus on facilitation and the use of facilitation skills in leadership development. There are also numerous short-term training courses available through independent facilitation providers. Organizations, such as the International Association of Facilitators, also provide voluntary certification, as does the U.S. Department of Veterans Affairs.[13]/[14] Though certifying credentials are not usually required to work as a facilitator, they do tend to provide a level of credibility and promote adherence to industry standards.
Settlement Conferences
Settlement conferences are meetings wherein a neutral person works with disputing parties to reach a mutually acceptable resolution of the issue in conflict. These proceedings typically take place after a lawsuit has been filed, but before the matter is heard by a court. As explained by the Superior Court of California, “in a settlement conference a judge or volunteer attorney assists the parties by evaluating the strengths and weaknesses of the case and attempting to negotiate a settlement of the dispute, but without making any decisions or orders in the case.”[15]
The specific processes of a settlement conference vary from jurisdiction to jurisdiction, but this type of ADR has become a standard element of the litigation process for various types of legal matters, including civil lawsuits, domestic relations cases, contract disputes and employment-related claims. While settlement conferences are often initiated voluntarily by either party, many courts require good-faith participation in a settlement conference as a standard step in the litigation process. Failure to participate can result in sanctions by the court.
If the conference is initiated voluntarily, the parties and/or their attorneys may meet without a neutral party to discuss each side of the case and negotiate a settlement. For example, once a lawsuit is filed, the attorneys for both parties may voluntarily bring their clients together to discuss a possible settlement. If a settlement is reached, the parties may decide to drop the lawsuit and remove it from the courts.
Mandatory Settlement Conferences
Mandatory settlement conferences happen in various ways, depending on the type of case and the jurisdiction of the court. In some courts, the judge may call opposing counsel into chambers for a settlement conference. Though it may seem counterproductive, these conferences are commonly held without the defendant or the plaintiff present. This is done to decrease the risk of personal feelings impeding the negotiation process.
When these types of settlement conferences are commenced, the court may require that all participants be authorized to make final settlement decisions on behalf of their clients. As stated in the Rules of Civil Procedure for the Superior Courts of Arizona, each disputing party “must have a representative present who has actual authority to enter into a binding settlement agreement.”[16] This is to promote efficiency and the possibility of final resolution in the conference.
Mandatory settlement conferences may also include all parties and their attorneys. Under these circumstances, a judge’s role is similar to that of a mediator. The judge meets with the parties to guide them through the negotiation process. However, unlike a mediator, the judge may encourage settlement by advising the parties on the likely disposition of the case should it proceed to trial. The judge may also provide guidance in terms of a reasonable settlement amount.
Settlement conferences have become valuable tools within the judicial system. They help to move cases along in an expeditious manner, while freeing judicial resources for non-negotiable disputes. In jurisdictions where settlement conferences are required, the parties must at least attend the conference and make a good faith attempt to negotiate a resolution. Failure to participate in the settlement conference can delay further court proceedings and even result in a party being found in contempt of court. If the settlement conference is unsuccessful, the case proceeds to trial.
In cases involving family law matters, settlement conferences are done with the belief that it is better for parties to make decisions about their families rather than leaving these determinations to a judge. Particularly when children are involved, courts across the country prefer that families work out their own custody arrangements, without the added contention of intervention by the court. For example, in a Minnesota case, Tornstrom v. Tornstrom, the court reinforced a preference to have marriage dissolution hearings settled without litigation by affirming the district court’s enforcement of a mediated settlement agreement even when perhaps not all of the traditional formalities in a mediation proceeding were followed, but there was a “meeting of the minds” on the agreement.[17]
The use of mandatory settlement conferences varies greatly from state to state. For example, New York mandates settlement conferences for home foreclosure proceedings.[18] Several states, including Florida and Nevada, mandate that parties to medical malpractice matters participate in settlement conferences.[19]/[20]
Settlement Agreements
Once a settlement is reached, the details are reduced to writing for review by all parties. For example, a personal injury settlement agreement may include such factors as the monetary amount of settlement, a schedule for payments to be made and an agreement by the injured party to not pursue further legal actions against the responsible party. A domestic relations agreement typically includes clauses such as the distribution of marital property, the details of a custody arrangement and any spousal support agreement.
Where the parties are represented by counsel, one of the attorneys will draft a written agreement and send it to the other side for review. The other party may note desired changes and send it back to the drafter. This process can repeat until all parties are satisfied with the settlement agreement. It is possible that the settlement process will fall apart during this process if the parties cannot agree on the written agreement. If that happens, the dispute will return to the trial process.
When both parties are satisfied with the terms of a settlement agreement, the parties and attorneys sign it. To avoid misunderstandings, the agreement may include spaces for a signature or initials after each of the agreement’s provisions.
Rael v. Davis[21] was a California case that involved a dispute arising from the failure of all parties to sign a settlement agreement. It centered on an agreement between Mrs. Rael, her deceased husband, and his three adult children. Years after execution of the agreement, one of the children refused to perform per the agreement. Ms. Rael asked the court to compel compliance. The court determined that, since the agreement had not been signed by one of the children, it was unenforceable, demonstrating the importance of securing all parties’ signatures to the agreement.
Settlement agreement provisions depend on the details of the dispute, but regardless of the subject matter, the agreement needs to be adequately specific and unambiguous. For a settlement agreement to be enforceable, it should provide a comprehensive view of the entire settlement, so that it clearly lays out the responsibilities of each party. However, the specific requirements for an enforceable settlement agreement vary depending on state case law. In a Texas case arising from a disputed lease agreement, E.P. Towne Center Partners, L.P. v. Chopsticks, Inc., the Texas Court of Appeals held that a settlement agreement was enforceable when it provided “for the mutual release of the parties’ claims and dismissal of the underlying suit with prejudice” even though it was silent on important terms, such as timing for compliance with the term that a party was to vacate premises at issue and whether a security deposit would be refunded.[22] As long as the agreement is “sufficiently definite to enable a court to understand the parties’ intentions” and does not “lack essential terms,” it is binding, even if it is silent on issues that are “significant to the parties’ relationship.”
An incomplete or inadequate settlement agreement, though, can cause problems down the road. One of the parties may not perform as agreed, citing an ambiguous provision in the agreement. This can create a difficult situation for the attorney, as well as the client. As the justices in the California Supreme Court case Hess v. Ford stated, “attorneys’ energies are better spent making sure that release agreements accurately reflect their clients’ intentions than in litigating what their clients really intended when they signed agreements.’”[23] A failure to perform under the agreement may also result in a return to court for necessary litigation.
In our next module, we’ll focus on mediation, the more formal type of non-binding alternative dispute resolution.
[1] https://www.eeoc.gov/federal/adr/facilitation.cfm
[2] https://www.eeoc.gov/federal/adr/facilitation.cfm
[3] https://www.beyondintractability.org/essay/facilitation
[4] https://www.eeoc.gov/federal/adr/facilitation.cfm
[5] http://tfig.unece.org/details.html
[6] https://www.theguardian.com/global-development/2013/apr/22/trade-facilitation-barriers-international-commerce
[7] http://tfig.unece.org/
[8] http://www.wghill.com/facilitate.htm
[9] https://pcnrc.files.wordpress.com/2016/09/facilitation.pdf
[10] https://pcnrc.files.wordpress.com/2016/09/facilitation.pdf
[11]https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/QAPI/downloads/BrainAffinGrpMultVot.pdf
[12] https://www.iaf-world.org/site/home/iaf-world
[13]https://www.iaf-world.org/site/home/iaf-world
[14] https://www.va.gov/adr/NCP.asp
[15] http://www.sdcourt.ca.gov/portal/page?_pageid=55,1555420&_dad=portal
[16] 16 A.R.S. Rules of Civil Procedure,Rule 16.1
[17] Tornstrom v. Tornstrom, 887 N.W.2d 680 (Minn. Ct. App. 2016)
[18] NY CPLR § R3408 (2015)
[19]https://law.justia.com/codes/florida/1998/TitleXLV/chapter766/766_108.html
[20] NV Rev Stat § 41A.081 (2013)
[21] 166 Cal. App. 4th 1608 (2008)
[22] E.P. Towne Center Partners, L.P. v. Chopsticks, Inc. 242 S.W.3d 117, 122-23
[23] Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 530