{3:48 minutes to read} This question is the subject of many a treatise, panel discussion, informal debate among mediators, and heartfelt soul-searching for an individual mediator confronted with the situation.
If you’ve been mediating a while, undoubtedly this has come up for you. Or if you’re a client in a mediation, you may wonder just how strong is your right to determine the outcome. The scenario:
A client knows the substantive law on the issue, understands the likelihood of what might happen if he or she goes to court, and, most confounding to the mediator, understands the possible negative outcome of the choice. Nonetheless, the client insists upon a decision that the mediator believes is not sound or proper.
There can be many reasons for this. As noted in a previous post, wanting to get the matter resolved can be first and foremost a reason for the decision, but that is not the only motivation. It can be:
Guilt;
Compassion for the other party;
Taking on an extreme caretaking role; or even
An unreasonable optimism about their future circumstances.
As a mediator, I’m not sure if the reason matters. Although it certainly speaks to whether or not the person has capacity and is making an informed decision, in terms of my having a concern over their ability to live in the future, it makes no difference.
There is guidance in the Model Standards of Practice for Family and Divorce Mediation.
First and foremost, Standard I provides:
“A family mediator shall recognize that mediation is based on the principle of self-determination by the participants.”
Then, Standard XI cites, among the circumstances under which a mediator should consider suspending or terminating the mediation, that the parties are about to enter into an agreement that the mediator believes to be unconscionable.
So, self-determination is paramount, but a mediator should consider terminating the mediation if he or she feels that the terms are unconscionable. Herein lies the dilemma:
According to the preamble to the Model Standards, “should” indicates that the practice described in the Standard is “highly desirable and should be departed from only with very strong reason.” It has more weight than “may,” but less than the rarely used “shall” which means that the mediator cannot deviate from the standard.
Then the word “consider” again gives more discretion to the mediator and less of a mandate.
Finally, the term “unconscionable” raises a question. Is it the common definition of “not right or reasonable,” or the definition used in law, “unusually harsh and shocking to the conscience; that which is so grossly unfair that a court will proscribe it.”
So, yes, guidance is provided, but not the answer.
Clearly, this is not a question to be fully explored in one or two blog posts, and I would not purport to do so. But in my next post, I will explain how I address it, and the explanation I give to my clients.
What is your understanding of “self-determination?” Please feel free to share your thoughts in the comments section below.