Chipping Away at Self-determination

“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. (From Standard 1: Model Standards of Conduct for Mediators)

It is significant that self-determination shows up at the top of the list of standards that mediators are encouraged to follow. Self-determination in mediation is not merely an afterthought or an add-on to a list of things that mediators are supposed to do. It is number one. It is the major priority.

Those of us committed to keeping a focus on self-determination should be aware of the forces working against us. As a mediator with a focus on family and divorce matters I am constantly made aware of the tendency among other professionals who may provide a useful service such as parent coordinators, guardians ad litem, custody evaluators, and hearing officers to ignore self-determination. In all of these other roles, the professional either has decision-making authority or can make a recommendation to the judge which is most often adopted and becomes an order of the court. Mediation stands alone with its primary focus on party self-determination.

For many lawyers, legal representation means convincing their own client how they need to resolve the matter. While clients are supposed to have the final say, most lawyers go to great lengths to encourage the clients to put aside their own preferences. For judges, most do the best they can under some very difficult circumstances. The courtroom is often a “pressure-cooker” environment where the judge is very limited in what she can do. They are required to roll the dice, pick a side and make a decision.

Too often we simply pay lip service to the idea of self-determination, yet when it comes right down to it, we end up imposing our own views. We then shake our heads in judgement of the client’s unwillingness to listen to the professional. As the mediator shares information intended to lead the parties to a specific outcome, presents options, and tries to keep people “on track”, party choice often gets chipped away and shoved aside.

For myself, I too am guilty. I become impatient and at times I allow my impatience to lead the parade. I have these sermonette’s and words of wisdom that (I like to think) will turn these people into wise responsible adults and good parents

I don’t think that we chip away at self-determination because we are bad people. We do this because: 1) we believe, at some level, that we have the solution to the problem at hand and that the parties will benefit from my solution 2) As well- paid professionals we feel pressure to come up with an answer 3) We lack confidence in people’s abilities to come up with a viable solution on their own 4) It feels so natural and normal to lead people toward a solution. 5) We feel pressure from outside forces (program administrators, judges, lawyers and other referral sources) to reach an agreement. 6) I know that my intentions are pure and those of the parties are suspect.

                       

James Stovall

James L. Stovall founded The Mediation Institute, a non-profit organization that promotes the use of alternative dispute resolution processes in governmental, corporate, and family law arenas, in 1992. Mr. Stovall has conducted training workshops in Egypt, India, Indonesia and 23 states in the U.S. He has mediated over 500 cases… MORE >