1. All participants prepare for, and fully participate, in the meeting.
2. Participants know that they are responsible for their decisions and the outcome of the meeting.
3. Participants maintain flexibility, consider multiple options in making decisions, and, for the purposes of this discussion, ‘suspend’ their prior assumptions.
4. Participants regard and treat one another as colleagues.
5. Participants accept that the ‘facilitator’ ‘holds the context’ of dialogue – but know that the facilitator does not control or push the outcome.
6. Participants share all relevant information and do so in ways that others understand it. As needed, Participants disclose uncertainty, hypothesis and lack of knowledge—rather than concede it reluctantly.
7. Participants maintain flexibility and continually seek new information to determine whether previous decisions should be changed.
8. Participants explain their own objectives and interests.
9. Participants are not coerced or manipulated.
10. Participants base their choices on valid or best available information.
11. Participants work for outcomes that not only meet their own interests but also satisfy the interests of the other participants.

Agreements by Participants

Approach, attitude and process

1. We will work together in good faith, adhere to the agreed-upon agenda and time limits, and honor these agreements.
2. We will reciprocate concessions and return favors.
3. We will voluntarily disclose our interest in the outcome and bias.
4. We will be responsive to the other’s legitimate needs.
5. We will work toward the agreed upon goals of the group.

Communication

1. We share speaking time, and will not make speeches, dominate discussion or waste time.
2. We recognize our responsibility to both (a) state our view and (b) listen to the other party’s view. Accordingly, we will solicit the other’s view, listen responsively and help the other, as needed, to participate fully.
3. We will avoid dogmatism, posturing, emotionalism, rudeness, blame and threats.
4. We will avoid unjustified assumptions and off-the-cuff comments.
5. Extremism may be countered forcefully when justified, but not with extremism.

Drawn from the counsel, among others, of Carl Larson and David Chrislip in Collaborative Leadership and Chrislip’s Collaborative Leadership Fieldbook

This is a list of causes/triggers for large group failure or problems was developed in a web survey of group facilitators in April-May 2008. To get the input, experienced facilitators across the country were asked to fill out a web survey about “why things go badly in large group” processes. These facilitators specialized in environmental and public policy facilitation.

Joe McMahon compiled the comments. At the Environmental Conflict Resolution 2008 Conference in Tucson in May 2008, Joe McMahon of Collaborative Processes and Chris Moore of CDR Associates facilitated large and small group processes about this topic. We asked the group to tell us: Is this list of triggers for large group problems accurate and complete? They added a few topics. We asked individual to indicate which triggers occur most frequently in their experience. A    is inserted where many facilitators participating in the discussion supported this concept as a common problem for large groups facilitations. Although informal, the results are interesting.

My summary of what we learned – causes of group failures

Parties

1. Polarized parties, often with a long conflict history.
2. Lack of collaborative leadership or direction.
3. Dysfunctional parties.
4. Parties who seek to undermine the process.
5. Low disclosure by some participants, hidden agendas.

Process

1. The process pace is wrong; time too short for complex issues.
2. Problems with the decisional process or lack of clarity about desired outcome.
3. Unrealistic expectations (outcome and pace).
4. External pressure (from senior management or politics).
5. Lack of credible expertise to assess data.

Rule 0: We (mediators and facilitators) don’t know what is happening. (so we should not over estimate our knowledge)

Rule 1.  This is the parties’ process and they are in control.

1.1.   So don’t try to control or manipulate them (but you can coach or warn them of consequences)

1.2.   They decide both process and outcome – with advice from mediators and facilitators.

1.3.   The paying client does not have control – just responsible for payment.

Rule 2.  We must have clarity, not have confusion, about each player’s role and responsibilities; so remind them over and over of the roles

Rule 3.  We are coaches who seek to facilitate – make it easy; so we nudge rather than tell them what to do.

by Joe McMahon

For the lawyer practicing in the field of alternative dispute resolution, a common request is for assistance in drafting an ADR clause in a business agreement. Often, such a request is very brief; such as, “Give me a copy of a good ADR clause.” Or, “Give me a good but very short arbitration clause.”

As with other contract provisions, however, the mechanical use of a form or sample clause invites problems. Therefore, one of the lawyer’s goals in counseling a client about an ADR contract provision is to ensure he or she has enough information to make a thoughtful recommendation about the type of ADR clause that is best suited for the agreement.

In determining what ADR provision to include in an agreement, a lawyer may consider, among other things, the following four issues:

First, identify the types and frequency of disputes that might arise among the parties to the agreement.

Second, determine whether the disputes be categorized or characterized. Among other things, consider whether there might be some minor but frequent disputes which can be resolved quickly on a factual rather than legal basis; disputes which require special expertise or data collection for resolution; and potentially severe disputes which go to the very core of the contractual relationship.

These issues may suggest whether the client will be better served in arbitration for the fast resolution of small and frequent disputes or disputes that need a special expertise. On the other hand, if it is possible that a potentially severe dispute may threaten the entire business relationship, the client may be better served in litigation, which offers full due-process protection and the right of appeal in the event of an adverse trial outcome.

Third, consider what information is needed to resolve the dispute; who will have the information and documents; and whether the information will be available when a dispute arises. Also consider what will be necessary to gather and evaluate the information; who can evaluate it; how long it will take to gather and evaluate the information; and whether the dispute is primarily factual or legal.

The resolution of these issues may serve as a guide in drafting provisions in the ADR clause, which is designed to ensure the client has the information needed to resolve the dispute. For example, if arbitration is elected, the lawyer may wish to draft into the agreement provisions that provide for adequate discovery and other exchanges of information. Fourth, if a neutral is to be used in the process, consider what qualifications and skills he or she should possess. The success of some ADR procedures depends greatly upon the neutral’s skills. In drafting an ADR clause, consider how to select a neutral and how to inform the neutral of the resolution goals. Perhaps the lawyer can designate the person who or entity that will serve as mediator in the initial agreement. If arbitration is elected as the final and binding step for resolution, determine whether the client wants a single arbitrator or a panel of arbitrators. Also consider specifying the expertise that is required for any arbitrator.

Last, having consider the foregoing issues, consider whether the client has any special interests that should be addressed in the ADR clause. What are the special sensitivities that should be considered in drafting the ADR clause from the client’s perspective? Perhaps the client wishes to settle disputes promptly, reduce costs, avoid litigation in the other party’s home state, minimize the management time used to resolve conflicts, preserve a business relationship, avoid negative publicity, preserve confidential business information, minimize risk by limiting damages, use creative settlement techniques not available in court, avoid equitable remedies or minimize the time spent in discovery. Each of these issues can be addressed in the ADR clause – be both thoughtful and creative.

ADR Options

With the foregoing issues in hand, determine which ADR option or combination of dispute resolution options best suits the client’s situation. Consider among others, the options listed below:

▪ Litigation. If resolving the dispute requires preserving all procedural rights, including a right to appeal from an adverse judgment perhaps litigation is the client’s best dispute-resolution option. Nevertheless, if litigation is determined to be the binding step in any ADR process, consider whether the client wants to streamline service of process, discovery or other elements of the litigation process, create cooling-off periods before commencing litigation, select a forum for litigation or open documents for review prior to litigation.

▪ Arbitration. Arbitration is essentially private litigation in which the arbitrators make final and binding decisions, typically with a very limited right of appeal. As part of an agreement providing for arbitration, the lawyer should draft the terms to meet the client’s needs as described above. To do so, the lawyer can draft an arbitration clause that establishes the necessary procedural and substantive rules. For example, the arbitration provision may provide for limited or no discovery, specify precisely how discovery will be conducted, streamline or expedite certain parts of the dispute, ensure privacy concerning the dispute, limit the arbitrator’s powers or create financial incentives and disincentives for certain kinds of conduct.

▪ Mediation. Unlike arbitration, the parties, not the mediator, make the decisions in mediation. Therefore, mediation can be designed to resolve disputes with less focus on substantive content or the parties’ legal rights; it can focus more on the evaluation of a broad range of resolution options. In drafting a multistep-ADR process (i.e., a process with one or more nonbinding steps prior to final and binding resolution), the lawyer may wish to specify the parties will participate in mediation prior to the initiating arbitration or litigation.

▪ Neutral convening. In using a neutral convening, the parties agree to jointly engage the services of an ADR expert to advise them as to whether there are ADR options that could assist them in finding a resolution. Unlike mediation, the neutral engaged in a neutral convening does not necessarily try to resolve the dispute. Rather, the neutral agrees to meet with the parties and discuss with them how various ADR options may help resolve the dispute. The advantage of this approach is that the parties receive the advice of an ADR professional whose goal is to direct them to the ADR options best suited to their specific dispute.

When accomplished early in the dispute, this option can be very effective and efficient. For example, after hearing from the parties, the neutral may suggest that mediation would not be productive for a given dispute and then work with the parties to craft an efficient arbitration submission agreement.

▪ Advisory opinion. In drafting a multistep ADR clause, the lawyer may also wish to consider whether the parties would be well-served by using this nonbinding process, sometimes referred to a “nonbinding arbitration.” This process uses a qualified advisor (who is familiar with the subject matter or law related to the dispute) who can issue a nonbinding (advisory) opinion concerning the dispute. After meeting with party representatives and witnesses, and reviewing statements submitted by the disputants, the advisor can assess the strength and weaknesses of the parties’ positions and issue a written opinion that is provided to all disputants. The goal of the process is to provide the disputing parties with the nonbinding but reasoned opinion of an expert respected by all participants. Although nonbinding, the neutral’s opinion may cause the parties to reconsider settlement. If the disputants wish, they may restart settlement negotiations facilitated by the neutral advisor or another mediator.

A common practice is to use a multi-step process in which the parties agree to pursue a sequence of ADR options. The combinations that may make sense could call for negotiation between designated executives, followed by a neutral convening and, if unsuccessful, followed by arbitration.

The ADR clause the lawyer puts in his or her client’s business agreement is important. When thoughtfully considered and negotiated among the parties, an ADR clause may save the client time and expenses, provide for an efficient dispute resolution and, perhaps, preserve the client’s business relationship. Lawyers should refrain from automatically using the arbitration clause with which he or she is most familiar. Be creative and draft a clause that is specifically tailored to the client’s business interests.

Originally published in the Colorado Journal, May 19. 1999