“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” – Ben Franklin
Political debates have long raged about the role of the state, and the correct balance to be struck in its duty to guard both the liberty and safety of its citizens. People tend to view both as desirable, but assume that each comes at a cost to the other. Debates generally revolve around which of the two values to prioritize, and what costs to tolerate.
Similarly, mediators speak of the duties to honor party self-determination and to offer protection. As with the role of the state, many assume that there is a balance to be struck between the two, and tradeoffs to be made.
In this post, I’d like to explore the question of whether a mediator’s protective interventions are actually likely to achieve their intended effects. In other words, what benefits are being secured by these protections? Might prioritizing party self-determination[i] provide greater benefits, with fewer costs?
Protective interventions[ii] tend to go something like this: When a mediator believes the parties are heading toward an unsound decision, she will ask them a series of questions designed to help them see the flaws in their plan, often in the form of hypothetical scenarios (known as “reality testing”). If that fails, she may recommend that the parties seek the advice of an expert (e.g., a child psychologist, consulting attorney, or financial advisor). If the mediator believes she has the relevant expertise, she may share her own perspective on the decision. If the parties are determined to move forward with a decision that the mediator is troubled by, depending on how troubled she is, she may withdraw from the case. So, the general idea is that the mediator flags what she views as a flawed decision, and then, in some fashion, attempts to direct the parties away from that decision.
Undoubtedly, in many of these cases, the parties do end up changing course and making a decision that the mediator feels better about, and perhaps one that the parties also feel better about. At other times, the parties may not change course, but the mediator may continue to work with them anyway; in that case, she may decide that she did what she could by raising her concerns, but that these are ultimately the parties’ decisions. In other cases, the parties may not change course, and the mediator may be so concerned that she withdraws from the case. In this situation, she may decide that she does not want mediation (or herself) to be used in the service of a bad outcome.
While arguments in favor of protection of the parties, a third party, or even the mediation process are not without merit, there are a few assumptions underlying these attempts at protection that are worth exploring. The first assumption is that the mediator is in a better position than the parties to know what decisions they should make, and what information they need to make their decisions. While the mediator will (hopefully) have had mediation training, and may have subject matter expertise, she will never be an expert on these particular parties, including their values, preferences, limitations, and capacities; nor will she be an expert on their particular situation, including the realistic options they have, and how each option would work for them in practice. Therefore, there’s at least some reason to question whether the mediator’s concerns are (or should be) relevant to the parties’ decision-making process.
The second assumption is that these protective interventions are more likely to lead the parties to a good decision (even if only in the mediator’s eyes) than are practices that do not have protection as a goal. That is, there is an assumption that the parties would not eventually ask their own questions, raise their own concerns, or seek expert advice without being prodded to do so by the mediator. This also assumes that the protective interventions are not having the opposite of the intended effect, and that the parties would not, in fact, be more likely to change course without the mediator’s nudging. Given that autonomy is a basic psychological need (Ryan & Deci, 2017), it’s worth considering the possibility that applying subtle (or not-so-subtle) pressure to the parties may actually lead to resistance. The parties may then be more likely to dig in their heels and commit to a decision that they would have moved away from, for their own reasons, had the mediator given them the space and support to do so.
A third assumption is that all decisions made in mediation, especially those included in a formal agreement, will be given full effect by the parties going forward. Although the written agreement certainly matters, what people say they’re going to do and what they actually do are often two different things. Even decisions ordered by a judge may be ignored or challenged, formally or informally, jointly or unilaterally. This can be for the better or for the worse. That ideal decision that looked lovely on paper? It may exist solely on paper. Same goes for the not-so-ideal decision. Therefore, protective interventions that successfully get parties to a “good” decision in the short run may actually backfire in the long run – either because the decision did not work for the parties, or because they are still psychologically resisting the pressure that led to it. In contrast, decisions made freely by the parties, but that turn out to be mistakes, may be more easily corrected in the future.
Despite these doubts and concerns, protective interventions may be necessary in the context of an approach where the mediator directs the parties’ conversation and guides them through a series of steps, thereby giving them the expectation that the mediator is providing protection (see Bush, 2019). Relatedly, these doubts would not suggest that mediators take a hands-off approach, and offer no active support, or brush the parties’ disagreements, concerns, or hesitations under the rug.
Instead, these doubts and concerns about protective interventions suggest that if the mediator actively supports and reflects the parties’ choices without judgment, including their own efforts to gain clarity, the parties may be in the best position to understand their situation and make their own thoughtful decisions, without a need for the mediator’s protective interventions.
Of course, mediators who refrain from using protective interventions, and instead support the parties’ decisions, every step of the way, can also offer no guarantees about the quality of decisions the parties make. However, by supporting the parties as they make their own choices, whatever they may be, the mediator at least knows that he’s not bringing his own biases, misinformation, and pressure into the parties’ lives (including the pressure to reach an agreement[iii]). By treating the parties as if they are capable of making their own decisions, he may find (as would be predicted by the self-fulfilling prophecy) that this is indeed the case.
Although protective interventions are certainly well intentioned, perhaps we can best protect those we serve by protecting them from our own good intentions.
Bush, R. A. B. (2019). A pluralistic approach to mediation ethics: Delivering on mediation’s different promises. Ohio State Journal on Dispute Resolution, 34(3), 459-535.
Ryan, R. M, & Deci, E. L. (2017). Self-determination theory: Basic psychological needs in motivation, development, and wellness. New York, NY: The Guilford Press.
[i] The definition of “self-determination” is also a subject of debate. Although there is much to be said on this topic, for the purposes of this post I’m referring to the parties’ freedom to make choices about both outcome and process, with the mediator actively supporting these choices rather than attempting to steer them toward or away from any particular decision.
[ii] Protective interventions may take other forms in different situations (e.g., when the mediator suspects party incapacity or domestic violence), which are beyond the scope of this blog post, although the same principles may apply.
[iii] My suspicion is that these protective interventions arose in response to the tendency for mediators to prioritize reaching an agreement – any agreement – without regard for the quality of the agreement (nor for the quality of the parties’ decision-making process). That is, if the mediator is taking responsibility for getting the parties to an agreement, even if he is only nudging them in that direction, then perhaps he should take some responsibility for the quality of the agreement.
JAMS ADR Blog by Chris PooleAs someone who started her legal career as a litigator, I, like many other litigators, viewed mandatory mediation with both skepticism and some suspicion. When...By Lorraine Brennan