Mediator ethics: Self-determination conundrum

“Tell us what to do.” Balancing right of party self-determination with achieving settlement

2016 August

The appellate-court mediation of a general-litigation case had been a long affair, lasting most of the day. As I recall, five sets of lawyers and parties had secreted themselves in separate rooms, requiring that I conduct shuttle diplomacy rather than a joint session. The lawyers eventually expressed their frustration with the lack of progress. So everyone went home, which was not unusual given the settlement rate is only about 27 percent in these cases because one party won and the other lost at the trial court level.

Several weeks later, I saw the evaluations from the mediation. All were good. However, one lawyer (no names, but I ventured a guess as to which party he represented), after giving me high marks in all categories, answered the question whether he would use me as a mediator again, as follows: Yes, but not for this type of case, because he wouldn’t tell us what to do!

I have been conducting appellate-court mediations on a regular basis for over 12 years. This response has stayed with me ever since I read it long ago. Notwithstanding that I regularly make it a policy to inform everyone up front that my style is facilitative, no one ever complains; and we go forward. However, it is always obvious to me that many times that is exactly how the lawyers feel: Someone else needs to tell their clients what to do. The court also takes this into consideration following completion of each mediation, asking its mediators to specify their primary style in the case (facilitative, evaluative, or directive).

When searching for some consensus on the specific mediator styles, the only consistent result I found confirms inconsistency as varied as there are opinions, authoritative or otherwise, moving through a scale from least to most coercive as evidenced by the court descriptions. Without trying to corral every entry, two additional styles appear: transformative and narrative.

From my perspective, the most important underlying ethical value for mediators in any given case is the right of self-determination to be exercised by the parties to mediation. They must have the autonomy to make their own decisions without coercion or restraint (Waldman, E. (ed.) Mediation Ethics: Cases and Commentaries. San Francisco: Jossey-Bass, 2011, 3). If they wanted to be told what to do they would look to the courts or arbitration. However, because we are dealing with mediation, the lawyers for parties in the process are given the traditional task of putting forth the desires of their respective clients who are their own decision-makers at the end of the day. According to ABA Model Standards (2005), Standard I.A, self-determination occurs in connection with process and outcome when a party comes to a voluntary, uncoerced decision that is free and informed.

Having said that, under the Model Standards there are situations where a mediator may be required to balance the right of self-determination among the various parties to mediation. When that occurs the mediator needs to act pursuant to Model Standard I A.1, and conduct a quality process. But nothing justifies the mediator telling the parties what to do.

Style utilized by the mediator

So how does the mediator effectively perform when either or both sides want direction concerning what the outcome should be? How can this be justified? In effect, personally or through counsel in such a situation, the parties are abdicating their control over the outcome. The answer is provided by the style utilized by the mediator: directive, evaluative, or facilitative.

In the directive style, the mediator tells the parties what to do, and works to obtain agreement based on what the mediator feels the outcome should be. Evaluative mediators assess the pros and cons of success for each party and attempt to bring them to resolution through such analysis. Facilitative mediators try to move the parties on their own initiative to settlement.

There is also a line of thinking that digs deeper into the motivation behind the mediator’s particular style. Here the differences are between a limited influence, moderate influence, and one that is highly influential. In these cases, the mediator either orchestrates the process with few interventions or becomes a deal maker who is highly directive controlling both process and substance. In all of this, the mediator uses doubt to manipulate the parties, which raises ethical questions about the mediator’s influence. Indirect coercive techniques such as expressions of impatience, displeasure, and so on, or direct coercion as in threatening to withdraw or terminate the mediation, are used to assert mediator control (Moore, C.W., The Mediation Process: Practical Strategies for Resolving Conflict. (3rd ed.) San Francisco, Calif.: Jossey-Bass, 2003, 382-387). Generally speaking, we expect a mediator to move the parties to settlement by exercising the neutral’s power in the process but not dictating the solution.

Wood (2004) sees a mediator’s style as one that spans the spectrum from passive (or therapeutic) to directive leadership or active problem solver (Gulliver, 1970), with the directive or active “dealmaker” and interactive managing with party autonomy “orchestrator” styles as variants to the traditional types (Kolb 1983). He also discusses other variant types such as “shuttle diplomacy” where the mediator fashions the settlement by moving back-and-forth between the parties in conflict (Brett, Drieghe, and Shapiro, 1986); and then unveils five exotic styles (Honeyman, 1990): stoic, family doctor, strategist, bulldozer, and medicine show. Interestingly, Wood also considers four variant perspectives behind mediator styles (Brown, 1980): negotiator, facilitator, counselor, and democratic (Wood, J. “Mediation Styles: Subjective Description of Mediators.” Conflict Resolution Quarterly, 2004, (21)(4), 437-450).

The negotiator believes that neutrality automatically comes from the mediator’s actively maintaining the process. The facilitator is a staunch practitioner of leaving as much to the parties as possible (including agreement drafting) to ensure neutrality, emphasizing the communication factor between the disputants and minimal mediator control of the process. The counselor uses a more therapeutic approach (empowerment of and recognition by the parties). The democrat provides as much time as possible to the parties to interact, and places more emphasis on neutrality than fairness, because the latter is primarily in the eyes of the mediator.

Most fundamental principle of mediation

Because it is generally conceded that the most fundamental principle of mediation is party self-determination, the decisions of the parties should be voluntary and informed. The goal of the mediator should be to make sure the parties respectively understand the needs and interests of all concerned, and to facilitate a resolution of the dispute. The mediator is prohibited from coercing, improperly influencing or exerting undue pressure on the parties (Alfini, J.J., “Mediator Ethics.” In Bernard, P. and Garth, B. (eds.). Dispute Resolution Ethics: A Comprehensive Guide. Wash., D.C.: ABA Section on Dispute Resolution, 2002, 73-74).

While admittedly primarily associated with court-connected mediation that is not voluntary, there are additional offshoots of mediator styles that are more directive: Trashing, Bashing, and Hashing It Out (Alfini, J.J., “Trashing, Bashing, and Hashing It Out: Is This the End of ‘Good Mediation’?” In Menkel-Meadow, C., Love, L.P., and Schneider, A.K. (eds.). Mediation: Practice, Policy, and Ethics. New York, N.Y.: Aspen Publishers, 2006, 124-125).

Trashing is more of a settlement judge head-knocking approach. Direct party communication is discouraged and after the short initial introductory remarks section, the parties are shipped off to separate rooms from which they will participate throughout the remainder of the mediation session. Once the mediator has succeeded in getting the parties to agree on a solution, she may or may not reconvene with everyone in the same room for agreement drafting purposes.

The basher usually avoids spending any time in the evaluation process that the trasher uses to get the parties to come to agreement. Their time is spent on bashing the initial offers that the parties come up with at the beginning of the session, with the mediator attempting to get the parties to eventually come to agreement somewhere in between. The process commences with a longer initial joint session enabling the parties to communicate directly, after which they retire to separate rooms with the mediator shuttling back-and-forth inducing the parties to bid, not against each other, but against the mediator who cajoles them into an agreement.

The mediators utilizing the hashing-it-out style usually can be referred to as facilitator, orchestrator, referee, sounding board, and scapegoat. This is because they adapt to each case separately according to their assessment of the particular dispute, needs and interests of the parties. This approach has fewer directives and relies on the parties hashing out the agreement together. If the mediator feels the parties cannot function in this manner, the hasher assumes the role of link to communication. Because flexibility is the hallmark of this style, the mediator will apply trasher and basher approaches when necessary to get the job done.

Alteration of the traditional concept

Entering the fray is court-connected mediation. This has altered the traditional concept of party self-determination by inserting the orientation of lawyers, judges, and formal administration of justice processes geared toward settlement conferences and reducing the size of growing court calendars. Even in actual mediation sessions, the lawyers are the ones doing most of the talking and managing what transpires. Many of them do not act as mediation advocates but instead posture as if in court. Their client-parties become voyeurs to the process rather than the ones exercising their right of self-determination.

Abandonment of the joint session in favor of the caucus approach has fast become the rule rather than the exception. The mediators selected by lawyers for disputing parties are expected to evaluate the legal arguments of the case and direct the parties to a resolution consistent with such determined worth as if in a traditional judicial settlement conference. The historical justification for mediation that emphasized creative settlements (monetary or otherwise) has been discarded for the most part in favor of this law-oriented means of achieving resolution, as more attorneys and retired judges have entered the field as professional neutrals accustomed to performing according to their prior careers (Walsh, N.A., “The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization.” In Menkel-Meadow, et. al, 580-581).

Interestingly, the Oregon Standards require the mediator to inform the parties of the style to be used by the mediator. The California Draft Standards mandate that the parties be informed at the outset that they have the right to select the type of mediation process to be used by the mediator, and whether the mediator will be required to offer an evaluation, opinion, or recommendation concerning what outcomes might be possible. And, the Joint Model Standards of Conduct for Mediators, and the Model Family Standards, both refer to the facilitative style to be used by mediators (Alfini, J.J., “Mediator Ethics.” In Bernard, et. al, 76).

Ethical aspects of self-determination

While party self-determination concerning the design of the mediation may need to be balanced with a mediator’s obligation to conduct a quality process, a party’s right to self-determination may not be undermined for other reasons such as higher settlement rates, egos, and increased fees (Waldman, 372).

The mediator’s obligation to promote the telling of truth by parties and the mediator has an impact on party self-determination. Although there can be some deviation from the truth such as mischaracterizations that are nonmaterial, and exaggerations or omissions, the mediator should consider withdrawing when the deception by a party overpowers and taints the settlement (Waldman, 202-203). In such case, the mediator needs to be careful to do so within the parameters of the requirement of confidentiality.

Fraudulent misstatements of material fact are to be avoided, and in some instances the mediator has a duty to disclose material facts. Where a fact is material, partially true but ambiguous or misleading statements will also fall within the prohibition. And, knowledge of an incorrect perception left with the listener will also require correction; otherwise the uncorrected misperception also becomes an affirmative untruth. This event likewise requires that the mediator assess whether withdrawal is necessary (Waldman 204-205).

So what happens when a party or the party’s lawyer has a duty to speak because in the absence of that the other party is left with missing critical information necessary to the transaction, and the mediator is aware of this deficiency but does nothing? How does this affect the other party’s right of self-determination? The fundamental nature of party self-determination requires that the parties must be provided a framework where they can make voluntary and informed decisions. Since the right of self-determination is impacted where one party suffers a deficiency due to the missing information, it would seem that the mediator must either convince the withholding party to disclose the missing information, or withdraw while preserving confidentiality. Oregon and Virginia would require the mediator’s withdrawal; North Carolina and Alabama leave it to the mediator’s optional decision, with the caveat regarding confidentiality (Waldman, 207).

This analysis gets more complicated when we enter the arena of bluffing, puffing, and blustering, as well as the deceptive assertion that there is no more room for compromise to make the deal. In these situations there seems to be more leeway provided to both mediators and the attorneys for the parties because the deception does not fall within the restrictions of truth and reliability. Party opinions, estimates, intentions, and similar non-transparent categories of negotiation deception seem to fall outside the parameters of the prohibition against material misrepresentations. So while mediators are well-served to encourage their parties to be forthcoming in the expression of their needs and interests, and consideration of those of the other party, they are not the enforcers of transparency under these circumstances. (Waldman, 207-208).

Ensuring self-determination

Self-determination is more than simply a free power to choose; it requires that the choice be informed as well as free (Model Standards, I.A.). So how do we ensure this when mediation sessions include parties as well as their attorneys who seek to control their clients even in this confidential arena?

In my experience, the successful mediations have been those where the lawyers were informed and experienced mediation advocates as well as the legal representatives of the parties. In this capacity, they worked hard to make sure their clients were secure in and able to maintain their right of self-determination throughout the process. These were the mediations where settlement successfully resulted notwithstanding that the parties and their lawyers began the session with an anticipation that nothing would come from the process; it was just something concerning which they had to go through the motions before moving on to the remainder of the legal or adjudicative process.

Other cases demonstrated just the opposite. Parties came to mediation with their lawyers who performed in a way that their clients never had the opportunity to exercise their right of self-determination. This was the result because the lawyers treated the mediation simply as an extension of the combative legal process, which prevented any chance of a positive result. Probably the most extreme example of this was another complicated mediation involving family law issues. The parties and lawyers were involved in a shuttle diplomacy situation, where once again I was moving between different rooms throughout. One lawyer was playing with his cell phone while his client was sitting quietly by, as I was trying to engage them in a meaningful discussion. My time was still pro bono at that point, but, given the reputation of the lawyer, it is hard to believe he was not on the clock. His client was deprived of her right to self-determination; the case didn’t settle; and it was a complete waste of everyone’s time, except for the lawyers who presumably got paid.

Bottom-line ethical question

The bottom-line ethical question must always be: Should the mediator simply try to make the deal, or work to ensure that the process has been a satisfactory experience for the parties’ exercise of their right of self-determination? It is analogous to the surgeon telling the patient concerning elective surgery, that, while the surgeon feels the operation will be advantageous, nevertheless the patient needs to make the ultimate decision because it is the patient’s body that will be the beneficiary or not resulting from the event.

As is the case with elective surgery, the self-determination of the parties must trump all else in the mediation process, whether court-connected or otherwise. The power to freely decide the process and outcome should always remain with them. Put simply, at all times the mediator must keep in mind that his dog is not in this fight!