Business Conflict Blog by Peter Phillips
A group of sharp and experienced thinkers on the mediation process offered a panel at the recent ABA Dispute Resolution Section meeting in New York before a packed crowd of just-as-sharp practitioners on the topic “Reevaluating the Role of Autonomy in ADR.” The discussion was led by an ever-patient and always-perceptive Hiro Aragaki of Loyola Law School, and questioned whether party self-determination — often extolled as a primary virtue in ADR and, indeed, Standard I in the ABA/AAA/ACR Model Standards of Conduct for Mediators — is actually a comforting myth. Prof. Aragaki opened the session with an anecdote about an exchange he experienced where the other discussant eventually threw up his hands in exasperation and said, “Autonomy? That’s just something they teach at Pepperdine!”
It got a good laugh. But as the hour went on, it became increasingly clear that party autonomy may, in fact, not exist in the real world of mediation — not ever.
One common example of incomplete party autonomy arises from the disconnect (whether intentional or not) between a party and her representative. The lawyer, seeing the matter through the lens of damages and contingent fees, may be seeking back-pay while the client might be seeking reinstatement. Who is the mediator to listen to, and is it the mediator’s job to mediate between them in the first place? Moreover, if the client were purely autonomous, the lawyer wouldn’t be needed, right?
Another speaker distinguished between self-determination as an attribute (a political or social perspective, as in “this person is a voter”) and as a capacity (a medical, psychological or educational perspective, as in “this person needs assistance to perform daily tasks”). Does the person sitting in that chair actually possess the capacity to make optimal decisions on her own behalf? Indeed, isn’t her own uncertainty on that score the very reason she hired a lawyer? And, one layer up, the reason they sought intervention by a mediator?
Indeed, the whole idea seems to make most sense when applied to people who have control of a situation. One speaker proposed that powerful white men are among the few who feel comfortable discussing party autonomy — because they are among the few who might actually possess it! May a woman in 1950 be said to have self-determination? Or, indeed, a woman today? Does an employee who needs the job have autonomy in negotiating its terms compared to an employer who merely needs the job filled by someone? As Anatole France said, does mediation, “in its majestic equality, mean that the rich, as well as the poor, are forbidden to sleep under bridges, to beg in the street, and to steal bread?”
Jennifer Reynolds acts as Ombuds for the University of Oregon, and is accustomed to dealing with individuals who are uncertain as to the appropriate structural, procedural or substantive context in which their concerns may be voiced. Indeed, their confusion is what prompts them to call the Ombuds office. Does lack of clarity on what you want and whom you want if from amount, in practice, to lack of autonomy? When one party to a divorce is financially dependent on the other, may each party be said to be autonomous? Same goes for employment disputes: As one speaker put it, “Getting fired is pretty disempowering.”
The attendees left with a more nuanced and more useful understanding of the principle of “party autonomy,” which released us as neutral facilitators. When we find ourselves trying to solve a conflict, we all are disadvantaged to some degree. We all are interdependent; what we decide in a mediation room will have an impact on people other than those who are present. None of us acts in a vacuum and none of us has perfect parity in either factual knowledge or negotiation skills.
Instead we might, as students and practitioners of the facilitative process, hope merely to provide help that a party did not otherwise have. We might seek to experiment; we might even hope that the exchange is, to some degree, transformative to the troubled or broken relationship. But to posit that the people in front of us are autonomous is simply delusional.
For more hilarious law cartoons by the fabulous Charles Fincher, click here. Yesterday, I had the distinct pleasure of speaking to, and then participating in a mock mediation with, Lisa Klerman's...By Victoria Pynchon