The Ideology of Party Self Determination

In seeking to practice both commercial and community mediation, I am struck by the differences in ideology regarding party self determination between the two forms of mediation. I am beginning to believe that the two realms of mediation should experience more cross fertilization, as I am not certain either ideology can prosper in isolation.

In commercial mediation, I find that the desirable ideology is that I am there to help the parties remove barriers to their reaching an agreement. If the parties reach agreement, then they have determined their own resolution, as opposed to submitting their conflict to a court for a judicial or jury determination. Party self determination has been upheld. I have facilitated their self determination even if I have been critical and evaluative in helping the parties remove the barriers that had previously prevented agreement. I am an advocate for agreement, but not for any particular terms of any agreement, as any advocacy of a particular result would prevent the parties from achieving self determination.

In community mediation, I find that the desirable ideology is that I am there to reflect and summarize and make neutral the parties' statements so that the parties' interests can be identified and understood by each of them, so that the parties then can move, or not move, to a point of common ground. The parties must take each step on their own, without my helping (or really being perceived to help) the parties to remove any barriers to their taking those steps. I am not an advocate for agreement, as any advocacy, even of agreement, would prevent the parties from achieving self determination.

Both ideologies need to inform each other. The commercial mediator risks losing the perception of neutrality each time the mediator tries to dismantle a barrier, as that barrier is usually dear to one party or the other, but not both. The community mediator risks missing the opportunity of relieving the great emotional pain that the parties experience in their conflict by not offering a suggestion that the parties would embrace, even though it has not been self generated.

My current operating assumption is that I should try to emulate the community mediator, at least a bit, when I am in commercial mediation, and try to emulate the commercial mediator, at least a bit, when I am in community mediation. I suppose Aristotle would approve.

Read More...

Summary only...