Facilitation - An Introduction

Over the course of time it has been seen that the two most commonly used forms of Alternative Dispute Resolution (ADR) mechanisms i.e. arbitration and mediation have either completely failed us or have failed to achieve the desired results.

The most common, and most used for high end and high value contractual matters, ADR is arbitration. The idea behind arbitration was primarily to save time and reduce the burden on the already overburdened judiciary and also relieve the parties of the complex procedural nuances of civil courts. However, it seems to have failed on all these counts. It has been seen that arbitrations have also started becoming long drawn out processes wherein the parties are caught in the same procedural cycle from which he was to be rescued. It has been argued by ardent followers that arbitrations have lowered the pressure on the judiciary; however, the fact of the matter is that almost 99% of the arbitral awards end up being challenged in courts. Thus arbitration while being marginally successful in patches has failed to make the kind of impact and bring about the kind of change that was expected of it.

The Second most common ADR is mediation. As of date in India each and every civil court including high courts has a mediation committee. Sitting judges and senior advocates have been called upon as mediators and they have tried their level best, however, mediation as an ADR has its shortcomings and the biggest of them is the highly limited role that a mediator is allowed to play. While an arbitrator has been made an all deciding authority the mediator has not been given any say whatsoever in the resolution making process except from maybe stopping the parties from turning the mediation process into a fighting process. The success rate of mediation, despite the effort and investment being made into it, is dismal to say the least. More than 90% of the matters sent for mediation come back to the courts in one manner or another. Either the mediation process fails but in many cases where mediation might have resolved the problem, the parties fail to keep to the resolution agreed to and end up in court. The success rate of Mediations carried outside of courts is also not very encouraging as it has also had low success rate and parties have ended up in courts.

The problem is simple. While both arbitration and mediation have some great aspects which make them a good ADR system, in an ideal space, they both have their shortcomings also. However, a new ADR system which picks on the best of both arbitration and mediation has been created called facilitation. Initially facilitation was used loosely as a ADR for office disputes or multi party disputes. However, over time it has become a specialized art and an effective ADR tool.

What is Facilitation?

Facilitation is a process in which a person, who may or may not be trained, but is an experienced legal and or subject matter expert/professional or an experienced facilitator, who helps the parties to reach a resolution to their disputes. It is pertinent to mention here that the whole process is heavily dependent on the impartiality and neutrality of the facilitator just like a mediator or an arbitrator. The parties also have to repose their faith in the facilitator. It’s essentially the same faith you repose in an arbitrator, in fact the faith reposed in the arbitrator comes with greater risk, as an arbitrator’s award is binding whereas in facilitation the final decision rests with the parties.

Now the obvious question that arises is that how is this different from mediation? A mediator is essentially a person who is a neutral, non-stakeholder and not connected to any of the parties, who sits in on meetings between the parties and essentially directs the discussion towards a resolution and maybe helps the parties find a common ground. Now this is what a facilitator also does. But this is not all that a facilitator does. In facilitation a lot has to be done before the parties can sit in to resolve their disputes. The facilitator first understands, separately from the parties, either through a meeting or via email, phone calls and other mediums, what each party’s issues/demands are and what their justification for the same is. After he has understood the issues raised by the parties he then evaluates these issues with the data/facts available to him along with any legal applicability if any. Once he has understood the dispute, to the best of his understanding, this is when he calls the parties to a meeting. Sometimes before a common meeting the facilitator might hold individual meetings with both the parties depending upon the nature of the dispute. In this meeting he explains to the parties how they stand and how good or bad their situation is. Then the facilitator holds a meeting in which the parties, unlike mediation, participate with a perspective and they understand much better how bad or good their situation is. They know their strengths and weaknesses, they know where they need to let go and where they need to assert themselves and facilitator aids and guides the parties to common ground from which a final resolution can be achieved by the parties.

Salient Features of Facilitation:-

• Proceedings carried out by a facilitator who is also a legal and/or subject matter professional preferably with training in carrying out facilitation.
• Facilitator is a non stakeholder, non interested, non related to parties and neutral person.
• Facilitator needs to have an in depth and clear understanding of the dispute so that he can then explain the same to the parties. (parties are warped by their own point of view)
• Facilitator has to then make the parties understand their case i.e. weak and strong points and pros and cons of taking the same to litigation or arbitration.
• Facilitator to provide the parties with a best possible solution, which takes into account the interests of both parties but is also based on the merits of the case. A difficult and delicate balance needs to be achieved.
• Facilitator, on the basis of all the above exercises, to encourage, guide and even steer the parties to arrive at a mutually beneficial resolution. (win-win)
  
  

Why Facilitation?

While there is no straight jacket formula as to how facilitation works there are some common points which makes the process understandable to the parties. However, the facilitator and the parties are and should be allowed to deviate from this process if in the end it leads to a mutually acceptable resolution, a win-win.

Facilitation is bit of a hybrid between Mediation and Arbitration. Unlike arbitration the parties are allowed to make their own decisions and there is no award that is final and binding. In fact there is a professional and qualified person who can explain to them their situation and help them understand and achieve a resolution without going through a lengthy litigation or risking an arbitration which might end up either way. Like any other ADR facilitation is also not fool proof, however, it has emerged as a synthesis of the two most common ADR’s available and incorporates best of both. Facilitation takes into account not just what the parties want and then adjust that to reach a resolution but it actually factors in where and to what extent should a party be asked to bend or adjust on the basis of an in depth understanding of the whole situation. It also makes parties aware that what they should expect i.e. making sure parties don’t overestimate their expectations because in doing so they end up with unrealistic expectations and tend to become hard lined in their approach thereby defeating the purpose. It is a delicate balance which needs to be achieved and explained to the parties before they are asked to make a decision. Another aspect of facilitation is that unlike an arbitration the facilitator is not passing an award, however, he is in essence telling the parties what they should do in their own best interest and in the interest of a resolution and almost half baking their resolution to them and then like a mediation sitting the parties down and fine tune this half finished resolution by providing their inputs, suggestions and demands, if any, as the decision in the end is with the parties and the  facilitator is just an enabler helping them make that decision. Thus facilitation is not an award completely, and it is not completely left to the parties, with a mediator sitting there trying to make the parties understand each other and at the same time go away with the best possible result.

Why Should You Choose Facilitation:-

• Incorporates the best of Arbitration and Mediation.
• Widens the scope and mandate of the facilitator in the process enabling him with tools to get the best resolution.
• The facilitator is more involved in the decision making process rather than act like a referee with no real powers.
• Parties negotiate with each other with a better understanding of facts and circumstances and are not warped by their own views.
• The resolution given by the facilitator while not being binding on the parties does help them see further in terms of a resolution.
• Facilitator provides the parties with a clearer idea of what the resolution could look like while leaving the final decision with the parties.
  
  

Like any other ADR, where the parties need to decide their own final resolution, facilitation will only work when the parties are ready to cooperate. However, where mediation fails is that it does not give the parties the opportunity to understand the other side’s case i.e. how strong or weak it is and also get a better in-depth perspective on their own case. Mediations also fails to address the grey areas that are there in any dispute, more so if the disputes are complex in nature. This is something which facilitation seems to be able to address much better than mediation. In India there is no real system of facilitation in place either by statute or by convention. There are some professional mediating organizations and bodies which are effectively doing this but they are still calling it mediation as facilitation by its name as such is not provided for. I believe facilitation is a much better system through which disputes can be resolved in a better and comprehensive manner and it has given results world over. While there may not be a legal framework for facilitation there is also no law/statute that stops or bars parties desirous of resolving their disputes in a quick and mutually acceptable manner to get the same facilitated and the resolution can be made final by way of a Settlement Agreement. Facilitation is developing as a specialized ADR system, with some good results, and we in India also need to embrace it.