Mediation, Trials & The Imperative of Self-Determination

How should we define a “successful” mediation?  We could limit it to those that end in a settlement.  But would that really be correct?  Sometimes a mediation ends with one or more parties deciding they would rather resolve their dispute through a trial.  If they choose that route with a clear understanding of the risks involved, then isn’t that also a successful mediation?  

How so?  Because the number one guiding principle in mediation is self-determination.  Indeed, the Model Standards of Conduct for Mediators begin with this basic premise.

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.*

The appeal of mediation lies in the freedom each party retains, throughout the process, to make their own informed decisions.  The mediator’s role is never to coerce; it is to educate the parties, with the help of all involved, of the risks each side faces in going to trial.  

When they all fully appreciate those risks, a mediator can help the parties manage them through negotiations that eventually lead to a settlement.  

Sometimes, however, one or more of the parties understand the risks, but they are simply willing to take them.  They will have their own reasons for doing so.  There may be some who question that choice, but the principle of self-determination always rules.  

The unsuccessful mediations are the ones where one or more of the parties just do not understand the risks - or perhaps refuse to accept they even exist.  Those are the ones that will leave mediators wondering what else they could have done.  We all fail from time to time.  We just need to know when, and we just need to ask why.  That is how we improve.  

* The Model Standards of Conduct for Mediators, Standard I.  The American Arbitration Association, the American Bar Association’s Section of Dispute Resolution, and the Association for Conflict Resolution drafted these standards in 1994, revising them in 2005.