Voluntariness on Display: Self-Determination in Mediation

Posted By: Paulina Jedrzejowski CPR Speaks,

On March 2, 2023, the Greater New York Chapter of the Association for Conflict Resolution hosted its 259th Roundtable Breakfast titled, “Self-Determination in Mediation: the Art and Science of Mirrors and Lights.” The presentation, led by Dan Simon and Tara West, was based on their 2022 book, Self-Determination in Mediation: The Art and Science of Mirrors and Light.

The monthly breakfasts are co-hosted by the CUNY Dispute Resolution Center at John Jay College, which links to the archive of the sessions, developed in the wake of the 9/11 attacks, here.

The presentation began with a discussion of Standard I of the Model Standards of Conduct for Mediators. According to the standard, self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties are allowed to exercise self-determination at any stage of a mediation. According to Simon and West, it is the mediator’s role to support self-determination. 

Simon then presented three examples to illustrate the paradox of self-determination. In the first example, a couple was engaged in a mediation and the woman wanted to continue the mediation. Simon stated that on the one hand, self determination was not possible because the woman was threatened with violence so the mediation would not work but, on the other hand, choosing whether to continue with the mediation may have been the only opportunity for the woman to exercise her self-determination.

In the second example, an individual was participating in a mediation but allowed the lawyer to do most of the talking. Again, there may have been no self-determination in this scenario because the lawyer was the one who was speaking but, at the same time, the individual may have been asserting his self-determination because they wanted the lawyer to be the one who speaks.

In the third example, two individuals in mediation asked to arbitrate the issue. Likewise, on the one hand, there may have been no self-determination because the mediator would have made the decision to become the arbitrator, but the individuals could have also been exercising self-determination because they were asking for the arbitration.      

Next, Tara West spoke about the Self-Determination Theory and how the three basic needs of the theory--autonomy, competence, and relatedness--run deep and are relevant to an individual’s role as a mediator.

Simon then walked participants through an exercise in which everyone was asked to think about a conflict and how they felt in that conflict. He then stated that most people feel weak (helpless, confused, and overwhelmed) and self-absorbed (hateful and hostile) in a conflict which creates a vicious circle of conflict.

In particular, he stated that conflicts feel distressing because none of the three basic needs of autonomy, competence, and relatedness are met. Yet, the vicious cycle can be reversed. According to Transformative Mediation, (Joseph Folger and Robert A. Baruch Bush, Transformative Mediation, 2 62 (2014) (available at http://bit.ly/3mrkvK0)), individuals have the capacity to transform weakness into strength and self-absorption into responsiveness.

The presenters then spoke about the role of a transformative mediator in the process of turning a vicious cycle into a virtuous cycle. The role of a transformative mediator is to help parties see themselves and help parties see each other, the situation, and opportunities to make more choices.

To better illustrate the role of a transformative mediator, participants were asked to watch a clip from an example of a transformative mediation from Dan Simon, Transformative Mediation in Action: Workplace Discrimination Case Example. Tara West then discussed how Simon acted as a transformative mediator. By not focusing on any aspect of the conversation but, instead, trying to present the entire conversation as best as he could, Simon held up a mirror to both individuals in the conversation. He also often asked the parties if they would like to have him repeat what they were saying before repeating what they said.

West then stated that there are a number of things a mediator can do to support self-determination in a mediation. For example, mediators can try to accurately summarize the conversation, both agreements and disagreements, use a lot of the parties’ own words, keep decisions in the parties’ hands, help parties meet their basic needs, and foster empowerment and recognition shifts.

Yet Simon pointed to the paradox of how mediators phrase the parties’ self-determination. Specifically, a mediator can claim that they can have an impact on an individual’s self-determination, but if they are actually impacting self-determination, then the parties are not actually exercising self-determination. Thus, mediators need to ensure they are not pushing self-determination on the individuals but they are, instead, allowing it to happen organically.

West concluded the presentation portion of the Breakfast Roundtable by mentioning two anecdotes about the way she has acted as a transformative mediator. In the first example, a divorcing couple was trying to determine the price to compensate the husband for moving out of the house. Before the mediation, the wife and husband completely diverged on the price.

During the mediation, the wife stated that she cannot pay more than $43,000. The husband left the room and came back to reply that he would like to be paid $41,500. Tara West said she was surprised by the husband’s response but she said that psychologically, the husband likely felt better with a price of $41,500 than if he asked for $43,000.

In the second example, two individuals were dissolving a nonprofit on bad terms. They asked for a mediation to resolve a dispute. During the mediation, one of the individuals was reading a hostile letter and the other individual was also responding aggressively.

West asked them how the parties would like West to support them. The parties responded that they simply wanted West to observe the conversation. When they finished the conversation, they decided on who will take which documents from the nonprofit organization. After the mediation, one of the individuals expressed that she was worried about having West participate because she though that West would get in the way, and the result that night was the first time she had a good night of sleep in weeks. 

Simon concluded the Roundtable Breakfast event by stating that although there are costs and benefits to self-determination, mediators need to allow parties to make their own decisions even though they may know that the decision the individual is making may be harmful.

The March 2 Roundtable Breakfast can be found on YouTube here

* * *

The author, a second-year Brooklyn Law School student in New York, is a CPR 2023 Spring intern.