Facilitated Dialogue Model: A Rebel in ADR?

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Introduction

“In the midst of chaos there is also opportunity”

–  Sun Tzu (The Art of War)

“[Mediator secrets]…enables parties separately to unburden themselves to the mediator, so as to receive assistance which would be otherwise unavailable to them.”

–  Lord Briggs

What is Facilitated Dialogue Model (FDM)?

With reference to Sun Tzu’s quote, the Authors assert the current global landscape is changing rapidly, and the Alternative Dispute Resolution (ADR) field has not been immune to these changes.  There continues to be evolution in opportunities, legal practices and business protocols.  We further propose that change is being driven by a variety of factors, including technology, financial constraints, workplace practices, and the re-alignment of ADR within civil justice.

The Authors offer an original approach which re-imagines the use of the “mediator’s secrets” and “private information” assets in a process called Facilitated Dialogue Model (FDM).  FDM is not Facilitative Mediation.  FDM permits the ADR Practitioner to use these assets in a more directive way, which we define as FDM Knowledge.  This includes the design and customization of the FDM Questionnaire (Questionnaire) and the subsequent FDM Agenda (Agenda), which provides the platform for the parties to have a Direct Dialogue with each other.  The Direct Dialogue leads to Expansive Collaboration and the potential for FDM Agreement (Agreement).

What is novel about FDM?

FDM is novel in a number of ways.  First, is in its active use of “mediator’s secrets” and “private information”.  Second, is in its time efficiency.  The entire FDM process takes no more than 5.0 hours, and can be completed in as little as 5.0 days.  Third, is in shifting the burden of full disclosure to the participant at the Facilitator formalizes a process which directs participants to provide information within a very short turn-over.  Fourth, is in the critical role of the Retaining Client to select, vet and secure full commitment from the FDM participants.

We reviewed literature from a variety of writers on how best to realize FDM.  We specifically focused on comments made by two writers: Lord Briggs and Michel Kallipetis, KC, on the role of the Mediator.  

Lord Briggs stated: “[Mediator secrets] (our emphasis)…enables parties separately to unburden themselves to the mediator, so as to receive assistance which would be otherwise unavailable to them”.  

Michel Kallipetis, KC, further expanded on Lord Briggs’ comment by identifying an element which he called “private information” (our emphasis):

“an important part of the mediator’s role is to encourage the parties to trust him or her with private information, their views, hopes and fears about the dispute that they do not wish the other party to know.  Lord Briggs calls them ‘mediator’s secrets’.  Thereby the mediator becomes uniquely appraised of aspects of all parties’ attitudes to the dispute (such as their ‘must haves’, ‘cannot live with’, ‘would like to haves’) which may enable the mediator to promote a compromise route which would not occur to them, sufficiently meets their different secret concerns, and forms the basis of a durable settlement…  Lord Briggs accurately observes: “it enables the parties separately to unburden themselves to the mediator, so as to receive assistance which would otherwise be unavailable to them”.

What Michel Kallipetis, KC, referred to as “private information” and Lord Briggs as “mediator’s secrets” are assets which we suggest are not widely utilized in ADR.  ADR Practitioners, including Mediators, may historically use these assets in various ways, including: formulating open questions, citing scenarios and sharing relevant stories.

Who is FDM for?

FDM is a directive, fast-paced, time-efficient model for a neutral Facilitator (Facilitator) to conduct Direct Dialogue between clients in conflict.  FDM requires:

(a) The Retaining Client who has a legal, financial and/or contractual authority with potential FDM participants.  The Retaining Client nominates the participants for FDM.  Some of qualities for a Retaining Client include a person who is:

• progressive
• dynamic
• prepared to take some risk by using FDM
• assume responsibility for vetting participants

(b) a Facilitator who is experienced, intuitive, observant, analytical and skilled; and

(c) participants who are articulate, diligent, committed, collaborative and are able to engage in a Direct Dialogue with each other.  

Here are some examples, in not particular order:

• Civil, Commercial and Corporate lawyers
• Professional Associations
• Chief Executive Officers
• Team Leaders, including Sports, Manufacturing, Medical and Technology
• Self-employed Professionals

Origins/Background

In the ADR field and beyond, there are multiple models of Facilitation.  Our review of Facilitation authors such as Roger Schwartz, John Forester, Janice M. Fleischer, Adam Kahane, et al. demonstrate consensus on the key skill sets required to be an effective Facilitator.  These key skills include: strong verbal and non-verbal, analytical, questioning, trust building, reframing, and effective participant management.

Dr. Rosemary Howell, a member of the Australian Dispute Resolution Advisory Council (ADRAC), surveyed the Facilitation field in her article “Facilitation”, and described the different definitions of facilitation, types, styles, practitioner competencies, and the future of the field.  Dr. Howell’s quote captures the essence of FDM: “some parties prefer facilitation where there is an opportunity to reflect on differences and work towards a good outcome without formally acknowledging (and possibly entrenching) a conflict”. 

Suitability/Criteria

We conceptualized FDM to be applicable in specific situations when decision makers need speedy resolution, and may be applied in: business and commercial sectors, mergers and amalgamations, discord in work/project teams, and stalled ADR processes.  The element that unites these disparate situations is the need for a rapid and smooth turnstile where time, financial restraints and overall efficiency are paramount.  The entire FDM process was created to take no more than 5.0 hours, and could be completed in as little as 5.0 days.  Additionally, FDM was specifically developed for conflicts that are less than 1.5 years in duration.  In our design, conflicts with longer duration may be too positional and complex for FDM, and would therefore be more applicable for other ADR processes.  FDM does not preclude participants from accessing other ADR or litigation options.  

FDM is future-focused and conceived for pressing matters that require immediate attention, today.  participants to engage in a time-defined dialogue where they speak directly to each other, and are not permitted to restate, summarize or rebut.  The role of the participant is either speaking or listening.  They do not do both concurrently.  Conversely, we did not design FDM for entrenched interpersonal conflicts, family and estate matters, et al., nor for historical relationships, complex dynamics and the broader context.

As with all ADR, FDM is private, confidential and voluntary.  The Facilitator meets with the Retaining Client (Meeting #1) and provides an overview of the process, benefits, and roles and responsibilities.  For the Retaining Client, this is an unusual role in that they are required to nominate and vet who will be participating in FDM.  The Retaining Client exercises critical judgement in selecting the participants, and conveys to them the value of FDM to themselves and the organization.  At the same time, the Retaining Client is aware of the reputational risk to themself and the organization should the participants not be fully committed to FDM.

Stages of FDM

Overview

There are 6 distinct components of FDM:

1. Solo Meetings (3 in total)
2. Questionnaire (Pre-Joint Session Preparation)
3. Agenda (Pre-Joint Session Preparation)
4. Joint Session: Stage 1 – Direct Dialogue
5. Joint Session: Stage 2 – Expansive Collaboration
6. Joint Session: Stage 3 – ZOPA and Potential Agreement.

A flow chart overview is provided below for ease of reference.

The standard FDM process (with two participants) is 5.0 hours in total.  FDM may be completed over a period of 5.0 working days.

Solo Meetings (3 in total)

Once the Retaining Client secures participant agreement to engage in FDM, the Facilitator meets with each participant separately (Solo Meetings #2 and #3) to: 

(a) briefly outline this process; 

(b) their specific role and responsibilities in this accelerated model; and

(c) the opportunities offered at the Joint Session (Meeting #4).

In explaining the Joint Session protocol, participants are informed that:

(a) there is no restatement or rebuttal;

(b) there is no scope for criticism or review in either of their roles as Speaker or Listener; and

(c) participants have an active role.  

This active role is to identify potential threads of Expansive Collaboration as they listen.  This Expansive Collaboration is what we define as FDM Technique.  At the conclusion of the Solo Meetings, the FDM Facilitator notifies the participants that they will receive a Questionnaire at the end of the day.  The Facilitator drafts and creates a concise, customized Questionnaire.  Participants are required to return their completed Questionnaire to the Facilitator within 12-24 hours.  The Questionnaire delivery time, and the Questionnaire return time is consistent for both participants.  

Questionnaire (Pre-Joint Session Preparation)

The Questionnaire is composed of three questions. In Question 1, the participants are directed to identify no more than three issues they each wish to communicate to the other.  Each issue has a strict word count limit.  Question 2 asks participants to self-identify what role they may have contributed to the situation(s).  Question 3 asks participants to explore their Best Alternative to a Negotiated Agreement (BATNA), Worst Alternative to a Negotiated Agreement (WATNA), and bring other solutions and considerations to the table.

The Facilitator analyzes the Questionnaire responses from Question 1 only and uses their professional skills, such as reframing, rephrasing and negotiation, to build a fused Agenda composed of no more than three items.  Once constructed, the Agenda should cover all of the confidential topics identified in the Questionnaire.  The Agenda builds the platform that will permit Direct Dialogue between the participants (Joint Session – Meeting #4).

The participant responses in Questions 2 and 3 of the Questionnaire are exclusively and confidentially for the Facilitator use only.  This information is one of the key sources of “private information” which constitutes FDM Knowledge.  One of the novel features of FDM is that the customized Questionnaire created by the Facilitator explicitly directs participants to provide secret information in a clear and concise way.  The participantss are informed directly on the Questionnaire that the information they confidentially disclose in Questions 2 and 3 will be used to develop a strategy for Expansive Collaboration in the Joint Session.  The Facilitator’s use of this secret information to develop a strategy in the Joint Session is one aspect of FDM Technique.

Agenda: Pre-Joint Session Preparation

The Facilitator uses the information provided by the participants in Question 1 to prepare a fused Agenda that maintains participant confidentiality while also using neutral language that captures all participant issues.  The ability to effectively reframe participant language and create Agenda categories expansive enough to capture participant issues are advance skill sets that form a part of FDM Technique.  These advance skill sets require an experienced ADR Practitioner.  Once the Agenda is prepared, the Facilitator simultaneously sends the Agenda to the participants 12-48 hours prior to the agreed Joint Session date (Meeting #4).  The date of the Joint Session is determined by the Facilitator.  The Agenda is accompanied by specific instructions:

(a) each Agenda item is afforded a specific amount of time.  This time is tightly controlled by the Facilitator;

(b) the Agenda has a maximum of 3 items; and

(c) participants are to speak exclusively on the issues identified in the Agenda.

The 12-48 hour period between the Agenda delivery and the Joint Session gives participants the opportunity to decide and practice what they want to say in Direct Dialogue.

A case that we completed which illustrates the use of the Questionnaire and Agenda was a commercial dispute involving 3 business partners.  The partners were at a stalemate and unable to make company decisions for over a year.   With the fractious partnership relationship came personality and financial discord.  We used the Questionnaire and Agenda to have the partners earnestly revisit the purpose of their business, and address their multiple issues succinctly.  The Agenda created the platform for the Stakeholders to communicate openly and effectively during the Joint Session.  As a result, the partners reignited their zeal for their business.  Within a month of concluding FDM, the partners resumed their regular meetings and were able to make company decisions.

Joint Session: Stage 1 – Direct Dialogue

The Joint Session is no more than 3.0 hours in total, including breaks.

In the Joint Session, the Facilitator opens the meeting with a brief reminder of the benefits of the process, participant roles and responsibilities, and mutually-agreed standards around respectful dialogue.  For Agenda item #1, the participants take turns speaking and listening in equal measure.  At the conclusion of Agenda item #1, a break is called.  This pattern is repeated for remaining Agenda items.

After the participants have concluded their speaking and listening roles respectively for the Agenda items, a break is called.  This concludes Stage 1: Direct Dialogue of this 3-Stage process.  Once the break is concluded, the Facilitator then informs the participants that they are moving to Stage 2: Expansive Collaboration which encourages participant input based on what they just heard in their listening roles.

Joint Session: Stage 2 – Expansive Collaboration

Whilst maintaining professional neutrality, the Facilitator garners the FDM Knowledge from Questions 2 and 3 of the returned Questionnaire to formulate a plan to start the conversation, and elicit comments and questions to be used in Stage 2: Expansive Collaboration.   A further source of FDM Knowledge is any disclosed information during Stage 1: Direct Dialogue that can build a bridge for Stage 2: Expansive Collaboration.  

The Facilitator may also find it useful to draw from their personal and professional experiences to provide anonymized, demonstrative examples of the widest forms of collaboration.   The Facilitator’s ability to use the secret information provided by the participants in the returned Questionnaire and plan a strategy for Stage 2: Expansive Collaboration is a component of what we define as FDM Technique.  This is an advance skill set for experienced ADR Practitioners.  Stage 2: Expansive Collaboration may lead to the broadest Zone of Potential Agreement (ZOPA).

The quality of Expansive Collaboration required in FDM goes beyond the traditional ADR understanding of the word “collaboration”.  Authors like Adam Kahane, Nobukhosi Ngwenya and Liza Rose Cirolia, John Forester and Malcolm C. Burson use terms such as “stretch collaboration”, “communicative collaboration”, “conflict gradient” and “community/collaborative”.  The nexus in all of these models is the recognition that Expansive Collaboration is “a critical skill for coordinating the ideas and contributions of diverse sets of people…” (Brad Spangler).  

Joint Session: Stage 3 – ZOPA and Potential Agreement

The final stage of FDM is Stage 3: ZOPA and Potential Agreement, where the Facilitator guides the participants towards crafting a future-focused, enhanced collaborative plan of action that can or may lead to an Agreement.  The Agreement respects divergent positions and offers the widest possible ZOPA.  For example, one participant may have 60% of their needs met, and the other participant 40%.  A 60/40 split, or any other combination, is perfectly acceptable as long as both participants are in agreement.

A case that we completed which illustrates ZOPA was a commercial dispute involving 2 adjacent property owners requiring access in a shared property line.  The owners were extremely polarized; one required full access, and the other was not prepared to accept any access.  The returned Questionnaires revealed FDM Knowledge that exclusive possession was required by both owners.  In the Joint Agenda, the Facilitator used ZOPA by crafting a category that asked owners to explore all current gate access options.   In Stage 1: Direct Dialogue, one owner proposed a technology option that had not been introduced previously.  This proposal led to an Agreement which resulted in a virtual padlock which would allow both owners to monitor activity 24/7.

How Long Does FDM Take

The entire FDM process was conceptualized to be time-efficient and expeditiously results-oriented.  FDM requires a minimum of a standard work week.  The 5.0 day timeline is triggered when the Facilitator meets with the Retaining Client.  FDM is designed to take no more than 5.0 hours in total.  Additionally, the following elements illustrate the time-efficiency of FDM:

• At the conclusion of the participant Solo Meetings #2 and #3, the customized Questionnaire is simultaneously sent to the participants with a direction that the participants complete and return the Questionnaire within a brief turn-around window of 12-24 hours (to be decided by the Facilitator)
• On the return of the completed Questionnaire, the Facilitator creates the fused Agenda and delivers it simultaneously to the participants within a brief turn-around window of 12-24 hours (to be decided by the Facilitator)
• The Facilitator secures agreement from the participants as to when the Joint Session will be held.  Participants are given 12-48 hours to prepare for the Joint Session upon receipt of the Agenda

Benefits of FDM

FDM navigates on one hand all the traditional professional skills and ethics for ADR Practitioners, including independence, neutrality, confidentiality and transparency.  In addition, the we propose that FDM may offer a unique benefit to elite ADR Practitioners by:

(a) creating a facility to build immediate trust with the participants;

(b) anchoring their commitment to FDM by the use of their information (FDM Knowledge) contained in the customized Questionnaire;

(c) being able to ethically and effectively leverage the FDM Knowledge provided by the participants in the returned confidential Questionnaire to build a fused Agenda; and

(d) creating a forum for the immediate application of the information from Stage 1: Direct Dialogue to Stage 2: Expansive Collaboration.  

All of the above leads to enhanced collaboration and affords an arena to build an enlarged ZOPA.  An enlarged ZOPA may lead to Agreement.

Concurrently, FDM offers several advantages:

(a) highly-focused and efficient problem identification;

(b) customized, Facilitator-designed Questionnaire and Agenda which provides a focused platform for participants to have a direct, specific dialogue;

(c) enhanced collaboration that adapts the traditional rules, leading to an expansive ZOPA;

(d) expedited process designed to be completed in 5.0 hours or less over multiple days; and

(e) scalable process which may include more than two participants.

Another case that we completed which illustrates the benefits of FDM was a commercial dispute involving a Canadian retailer and U.S. electronic manufacturer over delivery of goods with an impending holiday shopping deadline.  The traditional shipping routes (by air, rail, sea and road) from the U.S. to Canada had been disrupted because of global crises.  Using FDM, the Facilitator utilized ZOPA to explore previously untapped road transport routes that were moving goods southbound from Canada to the U.S.  The parties recognized that trucks delivering Canadian produce to the U.S. were under-utilized on their northbound return.  The participants agreed to explore this route in their Agreement.  The result was that the empty produce trucks were used to ship the goods to Canada within the required contractual delivery time.  The supply chain was re-ignited within 10 days of the FDM conclusion.

Conclusion

In a non-scientific survey of our colleagues, it is our observation that many jurisdictions and practice areas globally have shifted to virtual delivery in the past few years.  From court rooms and universities, to conferences and workplaces, this shift is significant.  We are further observing a revolution in the practice of offering ADR services to clients within the majority of the international corporate and commercial world.  This includes the challenge of ethical service delivery that preserves core principles of confidentiality and transparency, while also balancing the imperative to be efficient and expeditious.  These professional changes offer the opportunity for ADR Practitioners to conduct national and transnational meetings virtually (eg. Zoom, Teams, WebEx), thus reducing the cost and time associated with physical travel and increasing our professional “green footprint”.

In sampling a cross section of conferences, journals, publications and blogs within the ADR sector, it appears ADR Practitioners are continually seeking ways to offer clients additional processes that:

(a) expand client self-determination;

(b) recognize time and fiscal responsibility;

(c) are more directive;

(d) are transparent and analytical; and

(e) support clients in being more collaborative and diligent.

We have incorporated these 5 foundational processes into FDM.

The combination of the advanced skills of the Facilitator, FDM Knowledge and FDM Technique forge a process which provides the option for an Agreement containing divergent and unequal positions, once the participants agree to such.  FDM permits experienced ADR Practitioners to modify some deeply-held and established professional practices in a way that is still legal and ethical.  These sacred traditions and principles, such as confidentiality and neutrality, are re-formatted and re-imagined (through the Questionnaire and Agenda) and yet continue to be transparent.  Our premise is that FDM is unique and a rebel in ADR.