By John Woodward
|Party self-determination has traditionally been valued as a core fundamental element of mediation. Under this vision, it was assumed that parties would be the principal actors in mediations to resolve their disputes, that they would actively and directly participate in communication and negotiation, that they would choose and control the substantive norms to guide the process of their decision making, that they would create the options for settlement and that they would control the final decision as to whether or not to settle the dispute. |
As mediation has developed and become integrated with the traditional justice system as a dispute resolution option, the emphasis on self-determination has diminished somewhat in the context of conversations around what the law would do and how the dispute would be resolved at court. This is an understandable response because, as mediation theory recognizes, one of the significant empowering elements of any mediation is to calculate the best alternative to a negotiated answer (BATNA). In the context of a court-connected mediation that consideration obviously includes the possibility that if the dispute is not resolved by agreement, it will be determined by a court, a fact of life which cannot be ignored.
This trend of diminishing emphasis on self-determination prompted Harvard Professor Nancy Welsh to question whether we should consider redefining the notion of self-determination and to recognize that evaluative mediation is becoming more accepted in the court-connected context where, inevitably, lawyers will have a greater role in advising their clients and recommending a settlement that aligns with what the courts would order if the dispute is not resolved at mediation. Welsh’s solution was to suggest that the effects of what she calls “muscle mediation” might be ameliorated if we modified the current existing presumptions about the finality of mediation and imposed a mandatory three day “cooling off” period during which any of the mediating parties would be free to opt out of the mediation agreement.
Empirical evidence gathered in the form of personal interviews with litigation lawyers in New South Wales in 2016-2017 has confirmed the existence of a trend away from disputant self-determination in court-connected mediation and a tendency for lawyers to take control of mediation sessions and to discourage disputant participation and, in some cases, to refuse to allow their clients to speak at all during mediation sessions.
It is also evidenced by the return of lawyers to mediation events, the persistence in using adversarial language and terminology in mediations and the preference among lawyers for the selection of retired judges or senior counsel as mediators in their clients’ disputes. The research revealed that it is quite common for disputing parties to attend mediation events accompanied by both solicitors and barristers and to be prepared to say nothing unless questioned by their own legal representatives.
In a forum which is designed to focus attention on parties’ joint interests and consensus building, it is common for lawyers to “open” by reading “position statements” which, contrary to the spirit of mediation, traverse the legal issues, to declare their clients’ superior positions and then go on to announce magnanimously that they are “here today to compromise and to settle the case.”
Unsurprisingly, in mediations where this is a typical scenario, the parties then separate into break-off rooms and the mediation continues as a shuttle mediation where negotiations proceed on a zero-dollar basis and end up somewhere in the middle.
The research revealed that these behaviours are prompted by lawyer persistence in clinging to a defensive posture where nothing is given away and no concessions are made except for a pre-considered and planned purpose.
As mediator respondents to the research pointed out, this runs contrary to the principles of integrative bargaining and consensus building which are valued by mediation theory. It does nothing to “…allow a full and frank discussion about what is going on for the parties.” 
The research also revealed that lawyers give very little thought to the choice of a mediator, very little advice to their clients about what to expect in mediation or how to prepare for it, and little or no thought to anything which might be regarded as extraneous to the legal case (the non-legal factors). Mediation is therefore presented to the disputant in a rather negative way as being a last ditch effort to achieve an outcome without having to go to the trouble and expense of actually proving the case in court (or the risk of having it proved against you, as the case may be).
The problem for mediation advocates is that, whether we like it or not, lawyers will continue to have a dominant role in advising their clients about the wisdom of court-connected mediation, its forms and processes, its benefits and shortcomings. They are gatekeepers and their views of mediation will continue to influence consumers of legal services whose perceptions of mediation will be viewed through the prism of their lawyers’ advice.
We know from the researches of sociology that lawyer attitudes about disputant participation play a substantial role in determining both the attitudes of their clients to mediation and the likelihood of its success. In 1986, Carnevale and Isen established by experiment that research respondents encouraged by “positive affect” responded more favourably to bilateral negotiation, achieved better outcomes and were more committed to outcomes than were those who were not encouraged or who were primed with “negative affect.”
If lawyers speak indifferently, or even disparagingly, of mediation then, even when it is ordered by a court or mandated by regulation, the mediation experience is likely to be diminished for the disputants. If, on the other hand, lawyers speak positively about mediation and advocate its integrative nature and expansive opportunities for dispute resolution, then the process and the disputants’ mediation experience will be enhanced.
The challenge for us as mediators is to encourage co-operative behaviours and to honour the value of disputant dialogue and active participation in mediations. The challenge for us as educators is to ensure that there is ongoing access to appropriate educational opportunities for lawyers who are in litigation practice. If we are not able to achieve those objectives, court-connected mediation will to a large extent remain mediation in chains.
 N Welsh The Thinning Vision of Self-Determination in Court-connected Mediation: the Inevitable Price of Institutionalization? 6 Harv Negot L Rev 1 2001
 Ibid p 7
 R33 mediator respondent to the research
 S Hardy and O Rundle Mediation for Lawyers (CCH 2010) 117
 J Dewar Family Law and its Discontents (2000) 14 International Jnl of Law, Policy and the Family 59 at 76; G Dimopoulos Gateways, Gatekeepers or Guiding Hands: The relationship between Family Relationship Centres and legal practitioners in court management and court process (2010) 24 Australian Journal of Family Law 176; F Donohue Lawyers as Gatekeepers: Mediation and the ADR Processing of Environmental Disputes (Dissertation in partial fulfilment for the degree of PhD, University of California, 1997)
 P Carnevale and A Isen The Influence of Positive Affect and Visual Access on the Discovery of Integrative Solutions in Bilateral Negotiation Organizational Behaviour and Human Decision Processes 37, I- 13 (1986) at p 7
John Woodward | 04/12/2018 at 10:34 am | Categories: Dispute resolution | URL: https://wp.me/p3tHWj-1zN
From the Australian Dispute Resolution Research Network