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

June 8, 2015    Blog

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.