Are You in Favor of Self-Determination in Mediation?

What about Mom and apple pie?  For or against?

Most people take for granted that all these things are indisputably good (at least in theory) though we usually don’t think much about why.

Not so with Andrew Mamo.  He recently published Unsettling the Self:  Rethinking Self-Determination in Mediation, which deeply analyzes the meaning of self-determination.

Riffing on Andrew’s article, I wrote a 5-page piece, The Important Role of Attorneys in Promoting Parties’ Self-Determination in Mediation.

I suggest that instead of using the term “self-determination,” which is an admirable but unattainable ideal, that we should focus on promoting “the best possible decision-making under the circumstances.”  Although parties often won’t be able to make the absolute best possible decisions for various reasons, it is an appropriate standard and aspiration, not an impossible ideal.

Comparing the techniques that attorneys and mediators use to help parties make good decisions, the article shows that mediators have much less ability to provide such help than attorneys, especially if mediators’ efforts are limited to interventions during mediation sessions.

So law school faculty should teach your students how to do a good job of representing clients in mediation if you really want them to promote clients’ self-determination in mediation after they graduate.

Not only that, but you will help prepare them for NextGen.

                       

John Lande

John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law. He previously directed its LLM Program in Dispute Resolution. He earned his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He began practicing law and mediation in… MORE >