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Self-Determination in Mediation

Self-Determination in Mediation

Why do you think self-determination is so important in mediation?

 

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To me self-determination is really the appeal of mediation in general. So when Bush & Folger wrote the book called ‘The Promise of Mediation’, my interpretation of one of their points is that ‘the promise’, the potential of mediation and the reason it differs from any other ADR approach is that the parties have control and they are self-determining. I think it’s really important to have a strong definition of self-determination, otherwise there’s that slippery slope to, ‘Well, it’s self-determination as long as I didn’t hold a gun to your head to sign a deal. Then it was your choice. But anything short of that is me being “helpful” as a mediator’. So that’s where, certainly the stories I hear form mediation as it’s done in litigation in the U.S.A., absolutely uses every trick in the book to try to get a deal done.

 

They say, ‘Hey, well it’s self-determination because I’m not a judge. I couldn’t order you to do it’. It doesn’t feel like self-determination to the parties. It feels like they got beaten down. And you know, now I’m distinguishing it from the more extreme but more common, frankly, litigation approaches to mediation. You know, those of us who are thinking a lot about mediation and studying it and teaching it, we tend not to engage in those more extreme, almost coercive measures. But as for why we don’t? I think the reason we don’t is because we believe in self-determination. So let’s make sure we’re being really true to that.

 

About the mediator

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As a teacher and practitioner of the transformative approach, Dan helps parties have a constructive conversation about their differences. He received his law degree, cum laude, from the University of Minnesota School of Law, his M.A. in Counseling Psychology from the University of Minnesota, and his B.A., with honors, from the University of California at Berkeley. Although he is licensed to practice law in Minnesota, he prefers to practice mediat... View Mediator