The Challenge for Mediators in Respecting Self Determination – The Person about to make a “bad” decision

Baltimore Mediation recently had an opportunity to conduct a workshop on mediator ethics to the Baltimore City Circuit Court. We know how important it is for mediators to examine their orientation to practice and we always facilitate discussion of the attendant issues in our certificated 40-hour trainings. Baltimore Mediation believes that an ethical mediator must examine ethical questions and grapple with them. In training, when Louise Phipps Senft asked the question “What makes you a good mediator?” The responses were varied. A few examples: “I’m fair”, “I have a keen sense of what’s right or wrong”, and “I can get people to agree.” These are viewpoints of settlement oriented mediators. It is easy to develop an ego around producing results, but that’s the very reason why the mediator ethic of self-determination is so important. Respecting self-determination is easy to say, but can be hard to do. Yes of course, people participating in mediation should be able to make their own decisions, especially when we think they are making good decisions. It gets thorny, however, when a mediator perceives that a client is about to make a decision with disastrous consequences or when a mediator feels they can “save” someone from themselves. This story comes up all the time when Baltimore Mediation trains attorneys. Consider this question that we heard in a recent training as an example: What if you are in a mediation session, and you just KNOW a person is about to make a terrible decision. Or you just KNOW that their attorney is being unethical pushing for something– even though the person does not seem to see the situation as you do. How could the mediator not step in? Many mediators, especially if they are lawyers, say they would enter into a caucus – a separate private meeting with just the person – and advise them to look a little harder at the deal. This is problematic for many reasons. First, this assumes that the mediator knows what’s best – that having legal knowledge means they have the whole story. Maybe they do, but maybe not. Secondly, even when truly believing they are protecting and helping the person, the mediator here is acting out of their own sense of what is right and good. Most critically, self-determination is out the window. This intervention disempowers the person and ruins the deal for the other person. The mediator here is not a mediator, but now is serving as an advisor. If you read this scenario and think that mediator intervention is the best course, then we’d urge you to consider your orientation to your practice. Look critically at your strategies and consider learning more reflective and eliciting practices. Do you use a directive approach as a mediator? Respecting self is a hallmark of good mediation practice and at Baltimore Mediation we take it very seriously.