Client Participation in the Mediation Process: Whose Case Is it Anyway?
Who controls the mediation process? The mediator? The lawyer? In practice, it often appears that the mediator and perhaps the lawyers control the process. However, self-determination in mediation extends beyond the outcome and into the process. Ideally, parties maintain as significant control over the process and outcome as possible, with mediators maintaining enough control to ensure a quality process. Self-determination is one of the qualities that separates mediation from litigation. Decades ago, several organizations of mediators, including the ABA, AAA, and ACR adopted standards requiring that the parties enjoy self-determination in the outcome and the process. The standard is as follows.
STANDARD I. SELF-DETERMINATION
A. 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.
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.
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.
B. A mediator shall not undermine party self-determination for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media, or others.
Some mediators believe they control the process, and the parties control the outcome. However, these guidelines suggest that participants in mediation vest a great deal of authority in the process with the client. Research on dispute resolution processes suggests that parties are more satisfied when they have the capacity to fully participate in the process and feel authorized to have significant agency in the decision-making processes creating the outcome.
While most lawyers may hate feeling out of control in any proceeding, they may have less control in mediation than in other situations. Generally, they should develop a level of comfort with vesting greater authority in creating the process and outcome with the client. However, when a lawyer feels like the integrity of the mediation process is not protected by the mediator or believes that the client is not being respected, the lawyer should not allow the process to continue. The lawyer may want to discuss concerns with the mediator and ensure that the client is fully supported in the process.
A lawyer may experience more control in mediation when a skilled mediator encourages the attorneys to collaborate while maintaining the integrity of the process. In an evaluative or directive form of mediation, the mediator will be exercising substantial control of the process by placing everyone in the caucus and providing an exclusive means of communication. In this scenario, both lawyers and clients may have limited ability to inform the process. In facilitative and transformative mediation, communication is often more direct between participants and a sense of shared responsibility to the process may be created.
Since lawyers often feel responsible for everything that happens within any dispute resolution process, some lawyers may be reluctant to permit the client to speak to the mediator. They may feel like the lawyer’s job is to protect the client—and the best way to do that is to preclude the client from speaking in front of anyone, particularly the other party’s attorney. However, the advocate’s job in mediation is very different than in a recorded adversarial proceeding. Permitting the client to speak frankly and openly with the mediator, particularly in a confidential caucus, should be explored by the attorney before deciding whether the client may communicate openly with the mediator or other party. Clients often appreciate feeling heard by the mediator, making them more open to resolution.
The bottom line is that lawyers have the responsibility to educate their clients about the mediation process and the advantages and disadvantages of mediation at various stages of legal proceedings, as well as different approaches to mediate. Self-determination is supported by assisting the client in making an informed decision about participating in mediation with the advice and support of their attorney. The lawyer should then collaborate with the mediator to create the best process for the client to fully participate in the process designed to help them find the best resolution to their legal dispute. When the parties are actively engaged in communication within mediation, they may experience increased satisfaction in both the process and the outcome. "
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