Picture this: The parties to an embittered legal dispute opt for voluntary mediation as the case works its way through the civil justice system. At mediation, each party (and its counsel) expects the mediator to "beat up" on the other party and to coerce a settlement by conducting private caucuses in which the mediator is expected to: (a) advocate one position over the other; (b) unilaterally determine the "value of the case"; and then (c) "sell" the mediator's predilection as to how the matter should be resolved, typically on economic terms to the exclusion of other possibilities. Not surprisingly, each party feels that his and only his is the "right" position.
In the process, the parties' role is largely passive and the mediator's role is evaluative. The mediator becomes a "distributor of justice" in the sense that he or she evaluates the merits and determines, in his or her judgment, how justice should be done. Counsel's role is usually focused more on advocacy and argumentation than on communication and agreement. The mediation is seen as a forum in which a party must "win an argument" rather than solve a problem through productive dialogue. In effect, the mediation is more akin to a non-binding arbitration. In reality, the two are, and should be, polar opposites in nature, scope and process.
Against this backdrop, I believe that a frequently overlooked but vital component of an effective mediation experience is that of self-determination. Indeed, the fundamental tenets of mediation include empowerment, recognition and self-determination [see Canon I, Model Standards of Conduct for Mediators (1994), promulgated by the American Bar Association, the American Arbitration Association and the Association for Conflict Resolution].
By "empowerment," we mean that the parties should come to realize that they, and they alone, have the power to resolve their differences on terms mutually acceptable to them. By "recognition," we mean that each party must recognize and acknowledge his or her role in the underlying conflict, take responsibility for it, and genuinely desire to really work toward an integrative solution. Self-denial, avoidance and blame may boost one's ego and cause a party to feel as though he or she is tough, but these negative qualities avail little in achieving a positive mediated outcome. If the battle could be won through blame and bravado, then why invest in mediation?
By "self-determination," we mean the parties' recognition of their inherent right to decide their fate with helpful input of others (mediator and counsel), but without coercion or the appearance of coercion. Simply put, the problem and primary responsibility for its resolution belongs to the parties. It is they who must live with the consequences of their decisions. And it is they who should be accorded the respect and latitude to reach those critical decisions after processing all relevant information (both good and bad), understanding the other party's needs as well as their own, searching for creative solutions, and then evaluating options realistically and objectively. In this manner, mediated discussions have the highest probability of success. A mediator here is a catalyst for productive communication and positive, self-directed action; he or she is not a decision maker.
I have found that the greatest predictor of mediation success is the parties' (and counsel's) willingness to engage in open-minded, non-adversarial dialogue leading to joint problem solving. When this occurs, I have found solutions to be inevitable.
California law recognizes these overarching themes in the context of "court-connected" mediation programs, such as that of the widely acclaimed San Diego Superior Court Civil Mediation Program. Significantly, the fundamental notion of mediation self-determination is manifest:
Rule 1620.3 Voluntary participation and self-determination A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties. For this purpose, a mediator must:
(a) Inform the parties ... that any resolution of the dispute through mediation requires a voluntary agreement of the parties; (b) Respect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and (c) Refrain from coercing any party to make a decision or to continue to participate in the mediation.
[Rule 1620.3, California Rules of Court (emphasis added)]
The advisory commentary following Rule 1620.3 is also quite telling. There, the drafters offer examples of conduct that are antithetical to the principles of voluntary participation and self-determination, such as a mediator's coercing a party to continue participating in mediation after that party expresses an interest in withdrawing; a mediator's offering an opinion or evaluation of the dispute in a coercive manner; and a mediator's use of threatening or abusive language in his or her zeal to prompt a settlement.
This, and similar transgressions, are inimical to the very spirit of mediation. They may in fact escalate the underlying conflict by further polarizing the parties and foreclosing opportunities to resume working towards an amicable, non-adversarial resolution at a later point, e.g., after further reflection on what's been learned at mediation or upon obtaining additional information that wasn't available at the time of mediation.
Parties and mediators must acknowledge that mediation is a process. Instant results, although desirable, sometimes just aren't attainable for a host of reasons. In those cases, what should be attainable are a forward-looking mind-set and a solution-focused game plan, formulated with the respectful, insightful and skillful assistance of an experienced mediator. With the active participation of the parties, the helpful input of counsel and the intuitive guidance of the mediator, solutions will invariably follow.
But the process requires patience. Mediation is an inappropriate forum for the hasty. It is an inappropriate forum for the intemperate. It is an inappropriate forum for the disrespectful. People who express these qualities might be better served in a forum whereby the firm hand of a seasoned judicial officer will, most assuredly, ensure protocol and decorum, under pain of contempt, if necessary. Self-determination of one's fate and control of the outcome, however, will be all but lost in the process. A third-party decision maker, be it judge, arbitrator or jury, will control that individual's fate. To be sure, a non-mediative, negative mind-set exacts a heavy toll.
In sum, and if nothing else, mediation is about self-determination. The process requires it, the law demands it and genuine problem solving compels it. If participants to the process (parties, counsel and mediators) were to keep this cardinal principle in mind when approaching mediation, then client expectations of the process and their active role in it will, in the long run, yield more durable agreements and more satisfying mediation experiences for all.