The recent article by Robert Bush and Joseph Folger on Mediate.com entitled, “Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination,” raises interesting questions about the purpose of mediation and whether mediators are adequately pursuing that purpose or not.
1. The Purpose of Mediation Is Self-Determination
Messrs. Bush and Folger state that their premise is “that self-determination, or what we call empowerment, is the central and supreme value of mediation. [emphasis in original]” I have always accepted that premise as well—any agreement reached as a result of mediation must be truly voluntary on the part of the parties. But the interpretation I give to party self-determination seems to be more limited than what the authors of this article have in mind.
I’ve spent more than twenty years following mediation from a variety of perspectives—as an attorney, as a party representative, and as a mediator. I agree with the authors that party self-determination is often not at the forefront of mediators’ minds. On the other hand, even mediators who are not focused on self-determination can achieve good results which satisfy the parties’ needs and interests.
The essential criterion of self-determination in my mind is the ability of the parties to walk away. Even in court-ordered mediations, the parties should feel free to abandon the process after a reasonable period of time.
But I do not believe it is wrong for mediators to push the parties toward a resolution. As long as the parties feel they have another alternative to a settlement, they are exercising self-determination to stay in the room and seek agreement.
2. Has Self-Determination Broken Down?
Messrs. Bush and Folger list many reasons why institutional pressures have led to the premise of party self-determination breaking down in mediation. Some of their reasons are
- Our problem-solving “culture of expertise” causes mediators to push inappropriately for agreements when the parties are reluctant
- Mediators are now often legally required to have subject-matter expertise in the fields that they mediate (in particular, perhaps, family law)
- Regulations give preference to mediators with legal backgrounds over those with other professional expertise, sometimes even permitting lawyers to mediate without any additional training beyond their bar license.
The authors clearly support the transformative view of mediation—which has as a goal that the parties be changed by the process as they resolve their conflict, rather than simply finding a way to reduce or avoid or compensate for the conflict. In the transformative model, resolving or “fixing” the conflict is secondary to transforming and empowering the parties.
I am not a transformative mediator. I feel no need to help the parties change. I accept that my goal is to see if they can reach agreement, and to push them sometimes toward a reasonable resolution of their conflict. But I also keep enough distance from the parties to recognize that it is their conflict, and not mine.
I tell parties that I am not a transformative mediator and that I will probably push them toward settlement. I also tell them that they are free to tell me no and to tell the other party no at any point in the process.
I have mediated disputes where I know a lot about the legal issues involved and disputes where I don’t know much at all. When I don’t know the law, I feel like I am operating in the dark with respect to helping the parties. I can still help them articulate and focus their issues, but I can’t provide any information about what might happen if they don’t settle, nor can I be sure they have addressed all the issues that are a part of their conflict. I may become more transformative as a result of my lack of substantive knowledge, but I don’t know that this is a help to the parties, who are often unrepresented by legal counsel.
However, Messrs. Bush and Folger are correct that a law degree is not a perquisite to being a good mediator. Many of the best mediators I have known have been non-lawyers—social workers and psychologists make excellent mediators because they know how to help people communicate. But the best of these non-lawyers have developed a good understanding of the legal issues in the cases they mediate.
3. Does Mediation Need To Be “Fixed”?
Among the authors’ recommendations to re-focus the field of mediation on party self-determination are that we
- End once and for all the fiction that evaluative case settlement is mediation—the traditional “settlement conference” mode that often passes for mediation.
- Undertake a fundamental redesign of mediator training—rather than focusing on managing the process, mediators should focus on supporting party choice.
- Publicize how has come to denigrate rather than promote party self-determination, which the authors believe is a prime reason for the underutilization of mediation.
- Change the requirements on mediator qualifications to eliminate demands for mediator substantive knowledge and expertise.
I think mediation can take many forms, one of which is the traditional “settlement conference” mode. That is not a transformative process, but it is a problem-solving process and has value. Not all problems need to be resolved through transformation, any more than an exchange of money can resolve all problems.
There may be an over-reliance now on training mediators to manage the process, but a failure to manage the process can result in angry exchanges that further break down the parties’ attempts to communicate, even when the intent is to “transform” them. I would not eliminate training on managing the process.
I came away from the article by Messrs. Bush and Folger recognizing how weak I am in transformative mediation. I acknowledge that there are disputes I should not mediate because of this weakness. Where parties need to have an ongoing relationship, such as divorced parents of a minor child, they need to come to terms with their past relationship before they can move reach a successful resolution to their conflict.
On the other hand, there are times when the parties’ time, money, and other resources are limited. A mediation designed to prod them toward quick resolution of their conflict may well be in their best interests. The mediator should make it clear throughout that the decision to reach agreement is in their hands, but the mediator may also be doing them a disservice not to push when agreement seems close.
In your opinion, should mediators pay more attention to party self-determination than most mediators do today?