Mediation Blog by Diane Cohen
In an effort to promote mediation and to avoid internal squabbling within the field, mediators over the past 16 years (since I became a mediator) have declared a truce on differences in mediation approaches. At the same time, we have embraced certain standards of practice. It is important to frequently look back at what mediation is, why it exists, whether our standards of practice are appropriate, and how to interpret them.
Self-determination. Self-determination is the fundamental tenet of mediation. Its reason is clear. Mediation is the one form of dispute resolution in which the only way to come to a resolution is by agreement. Thus, the parties must agree if there is to be a resolution. Hence: self-determination. The question, though, becomes whether self-determination means that the mediator can not make suggestions or put pressure on parties to come to a resolution that makes sense to the mediator. In my view, this is unpalatable, and does not promote the values that I personally believe in. However, is it unethical?
Neutrality. Neutrality is also a fundamental tenet of mediation. Its reason is also clear. Without neutrality or impartiality or lack of bias, the parties would not trust the mediator to be in the middle of their dispute. The mediator might manage the discussions in a way that will lead to a result more favorable to one party than the other. Yet, if that is the reason for neutrality, does that imply that any pressure by the mediator is unacceptable? Or does it mean that only subtle pressure is unacceptable? Or does it mean that only pressure based on bias is unacceptable? And if bias is the problem, is it bias related to the mediator’s view of the world or bias related to a preference as to the individuals in the case? Or is it bias regarding how the mediator views and assesses the particular facts in the case? In my view, any bias is unacceptable — it is not the way I want to practice mediation. And clearly, a bias as between the individuals in the room is objectively unethical. But if the mediator has a view of how the case should be resolved and if the mediator is otherwise unbiased as between the parties, is that a failure of neutrality? Is it unethical? What if that view happens to be one that favors husbands over wives or wives over husbands, for instance? Would that not indicate bias as between the parties based upon gender? What if the mediator is upfront with his or her biases and then offers an opinion? What if the mediator offers an opinion and tells the parties it is only his opinion and they can accept or reject it? Should we be protecting the parties against the possibility of being influenced by the mediator when they have decided and agreed to that process freely? If the mediator is clear about his or her biases and clear about the process and the parties agree to wanting to hear the mediator’s opinion, and we were to declare than unethical — would that be a failure of self-determination? Or should it then just not be called mediation?
Respect. Respect is not one of the principles that mediators talk about; yet those who have practiced widely in the field have noticed that parties will very frequently talk about respect as an issue between the parties. The fact that respect is an issue between the parties indicates that respect is important as between the mediator and the parties as well. Respect is a wide-reaching concept and includes: respect for the perspective of the party; respect for the ability of the party to self-determine; respect for the party’s self-image; and so on. Respect simply takes many forms and it could be summarized as: a recognition, appreciation and acceptance of the mind of each of the parties.
Because it is a complex matter, mediators who have not trained extensively; have not worked with a mentor skilled in the process; have not attended workshops with a leader skilled in the process; have not been self-reflective on the process of mediation; and have not had sufficient experience will usually not have an approach that truly respects each party in the way they want to be respected. Why is this important? Well, for one thing, it is simply a lovely value: to respect others. It brings out the best in both parties; it makes the mediator feel that he or she is doing good, important and meaningful work with a basis in valuable human principles. But is it a fundamental tenet of mediation?
If good mediation practice is to help the parties find a resolution they are happy with (whether that resolution is an agreement or a decision not to have an agreement), then respecting the views and mindsets of each party is the most productive and likely way to help the parties feel that they have been heard and understood and valued, and will make them more likely to hear, understand and value the other party in the room, especially since the mediator, by example, is valuing both parties.
There is another reason for this respect, and that is that the parties always know more about their case than the mediator — although many mediators continue to feel that just by hearing the recitation of facts and the discussion that ensues, that they are in a position to judge the situation.
In sum: respecting the hearts and minds of the parties is not only a worthy human value, but one most likely to lead to resolution.
One side note to respect: sometimes a party feels that the other party should not be respected, that they are not honest or sincere and are lacking integrity. When the mediator shows respect for the other party in this situation, it can be frustrating to the party holding that belief. This is one of the places that the art of mediation comes into play. The mediator must find a way to respect both parties in this situation, and that can be a complex combination of transparency about the mediator’s intentions, transparency about how mediation works and recognition of the perspectives of both parties. One thing that I have noticed is that by following through on the process of helping parties express themselves and understand one another clearly — any lack of sincerity or integrity will either fall by the wayside or become exposed. Thus, the process will correct for this.
Following the Parties. Following the lead of the parties is not a basic tenet of mediation, but may be part of self-determination. Many mediators distinguish between following the parties regarding the issues and following the parties regarding the process. I see no such distinction. When parties are not ready to address a particular issue, or want to talk about the issues in a particular order, for example, these things matter and have an impact on the mediation. For one thing, the parties may not feel respected (see above for discussion on respect) if their preferences are not considered; if the mediator chooses an order of discussion that is in line with the preference of one party over the other, he or she may appear to be biased (see discussion on neutrality above), and if the mediator pursues a process when a party is not ready to discuss it, the party may later change his or her mind about any agreement that comes from that discussion. That can either lead to dissatisfaction in the results of the mediation; a waste of time and money on the part of the parties; and/or a prolonging of the mediation process. In addition — mediation is a process of discovery for the parties. They come into mediation either thinking they know what they want or not being sure — but during the discussions, they can fine tune, self-reflect, mediate within themselves, and possibly change what they want significantly. This process of self-reflection and self-mediation is crucial to the process and valuable to the party. Following the parties — what they are ready to talk about, how they want to talk about it, and when they are ready to talk about it, allows this to happen.
What is my bottom line? I am not quick to say that every standard of practice is required in order for a mediation to be “ethical”. I think that some standards may stand in the way of the parties’ self-determination, which would be ironic. However, I do believe that if a mediator is concerned about helping parties come to a resolution of their own choosing that they will be happy with: self-determination; neutrality; respect; and following of the parties — in their most complete forms of observance – are likely to yield the best results.
In addition, as a person, I want to practice the kind of mediation that respects the individual, that helps them to self-reflect, to make reasoned and well thought through decisions of their own making.
Whether mediation should be defined to include certain practices — beyond basic self-determination and basic neutrality — and exclude others is an open question. Helping parties find the process they are looking for whether by defining mediation narrowly and calling other practices by a different name, or by being transparent about the particular mediator’s ” philosophy of mediation is a value that is important and maximizes the ability of the parties to choose the process they want and, yes, to self-determine.
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