By Michael K. Browne, Assistant Director – Complaint Investigations
Earlier this month, I introduced the department’s revised mediation program, identified various advantages it brings to those parties working within our administrative charge process, and encouraged both complainants and respondents to utilize this resource as they attempt to resolve civil rights complaints filed with the City of Minneapolis [click here for a link to the previous post – Part One]. In doing so, I intentionally characterized the program as “tailored.”
Indeed, our program had undergone a significant change through the adaptation of a specific “mediation style” that we trained our volunteer mediators to implement. This is additional training above the core “Qualified Neutral” program mediators complete before they are listed on the department’s roster (that is, the completion of an Alternative Dispute Resolution course certified through State Court Administration).
What is the MDCR’s Mediation Style?
The MDCR’s mediation style is a hybrid between “facilitative narrow” and “evaluative broad.”
Facilitative mediation is based on the idea that the parties are competent and able to work out their dispute better than a third party. Accordingly, the goal of this approach is to “empower” the parties by enabling them to control and resolve their own dispute. In this regard, the mediator’s role is to enhance and clarify communication between the parties in order to help them decide what to do in to order to reach a resolution.
In contrast, evaluative mediation presumes that the parties want and need the mediator to provide some direction as to the appropriate grounds for settlement – based on the law. Thus, the focus of evaluative mediations is on the legal rights of the parties. Evaluative mediators will often provide their opinions regarding the strengths and weaknesses of the case — that is, the likely outcome of the case — if it was to proceed through the investigatory process.
The MDCR’s hybrid method incorporates qualities from both of these styles.
How does the MDCR’s Mediation Style Work?
In the MDCR’s hybrid method of mediation, the parties still control the process, but the mediator provides guidance when asked for assistance or at impasse (a sort of writer’s block in mediation). For example, our mediators will try to help the parties “reality-check” their positions by helping them understand the strengths and weaknesses of both parties’ positions. While the mediator will not offer legal advice, they may assist the parties understand their options and provide assistance evaluating and constructing proposals when requested.
Although some in the Alternative Dispute Resolution (ADR) field may believe that evaluative and facilitative mediation styles are fundamentally opposing theories, which rely on different assumptions and approaches, the department pushes back on the theory of framing these two types of mediation styles in such a constrained context.
We embrace the premise that facilitative mediation relies on the ideals of “empowerment” and “self-determination,” which calls for a hands-off-leaning mediation approach, allowing the parties to direct the process. In this context, the MDCR challenges the implicit biases in the very definition of “self-determination.” Based on our mediation experiences, we recognize that the meaning of the term “self-determination” does not resonate in a similar fashion to all individuals, especially factoring cultural differences, various language abilities, and diverging perspectives into the theoretical equation. Why have we adopted this perspective? Because an essential objective of the MDCR’s civil rights mediation style is to eradicate structural biases, which includes the biases inherent to our programs and practices.
I am proud to give credit to the Complaint Investigations Unit staff for their assiduous and ground-breaking work in developing of our mediation theory and program. The practical and tangible results of our efforts will not be measured by the simple number of mediators we train in a new approach; rather, it will be measured in the quality of the services offered to the parties involved in a civil rights dispute before the department.