Conduct for Mediators: Self Determination

Posted by: David Fitzsimons Category: Mediation Comments: 0

Revised August 26th, 2021

Mediation has been for some time an accepted process for seeking solutions to ongoing conflict. Various standards exist as useful guidelines, and I’d like, through several posts, to address a widely recognized standard,  The Model Standards of Conduct for Mediators  [September 2005] This is a Joint Publication endorsed by the American Arbitration Association [AAA]. American Bar Association [ABA], and the Association for Conflict Resolution [ACR].  AAA’s various Rules for Mediation and Arbitration in substantive areas of law are often specified in conflict resolution clauses. I will assume the reader is familiar with the ABA. The Association for Conflict Resolution is a merged organization of three previous organizations of Family Law and other dispute resolution professionals.  The next and following articles will address the salient guidance of the Standards.

The preamble to these standards sets out the intent of the adopting agencies:

Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts. They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes. [emphasis added]

While the drafters also counsel that the order of the Standards, [there are 10] does not add “priority sequence”, the first Standard is titled
SELF DETERMINATION:

  1. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
    1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.
    2. A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.
  2. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

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