As a former mediator, I was delighted to review Dr. Bannink’s article on solution focused mediation. I had heard of this technique before, but had little knowledge about how it is practiced. Dr. Bannink’s article begins with an outline of the solution focused mediation style and then utilizes a case example to demonstrate the technique in action. I found this design to be an excellent teaching aid which clarified what can be complex concepts.
When I mediated, I used to tell people that we were beginning with a large pile of poker chips in the middle of the table. These chips had different values and would actually change value as they slid from one side of the table to the other. Our goal in mediation was to find the split that provided the necessary balance for a settlement. When everything went right, both sides left the table content.
Solution focused mediation seems to have a similar goal, which is finding the win-win scenario. However, Dr. Bannink’s process puts the onus on the parties to imagine what they would consider to be a win and asks the mediator to help them create that goal. In essence, it invites the mediator to be a blend of artist, psychologist, and fortune teller.
This technique could be particularly effective in domestic situations, contract negotiations, and even criminal mediations. These are all scenarios where non-traditional agreements are more easily developed. Additionally, these situations are usually accompanied by a great deal of emotion from both parties. As a result, words of validation and apology can carry significant weight. I have always believed that these types of mediations are fertile ground for creative solutions because the issues at hand are far more complex than simple dollar figures.
It strikes me that mediations which are focused only on money (as we so often see) would be the biggest challenge to the solution focused mediation model. However, as Dr. Bannink’s case example demonstrates, a skilled mediator may be able to help parties realize that no conflict can be as simply defined as a matter of dollars and cents.
Matt McCusker, MA, trial consultant, USA
One of the challenges counsel face and which trial consultants help to address, is seeing a case from others’ perspectives,including those of jurors, witnesses, opposing counsel and the judge. Awareness of others’ perspectives is invaluable in preparing for trial.
In Solution Focused Mediation, Dr. Fredrike P.Bannink presents a model of mediation that encourages seeing the mediation process from a different perspective than is typical in litigation-related mediations. In this model, the perspective of the client, rather than that of the mediator, is primary. The mediator and the parties consider the conflict from the perspective of the goals the parties want to achieve, rather than the perspective of what the evidence is and what the likelihood of success is at trial. And it invites counsel to see options for resolution from a new and broader perspective.
In my experience with traditional litigation mediations, the nominally collaborative process that promises party empowerment and mutually (or, at least, more) satisfactory outcomes, quickly devolves into shuttle diplomacy aimed at badgering one or both parties into moving from their positions to a compromise. Often, the end point is determined by the mediator’s personal judgment about how far the parties are willing to go and sometimes that judgment is incorrect. As a mediator, I know the process can be truly collaborative, more empowering and more satisfying, but it requires a different and more creative perspective.
Dr. Bannink describes the process from such a perspective, distinguishes solution focused mediation from traditional (“problem focused”) mediation, and provides tools to engage successfully focus on solutions. This approach can be useful in many litigation scenarios if mediators and counsel can trust the clients and the process. Institutional defendants and old school mediators might resist such an approach, but by adapting new methods, counsel can find new ways to make their clients’ lives better. And that’s what it’s all about.
Jill P. Holmquist, J.D.