In 2005, the American Bar Association together with other organizations, adopted the Model Standards of Conduct for Mediators. Standard 1  entitled “Self Determination”  defines it as

… 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.

A recent mediation which I “conducted” brought this standard to mind as I essentially sat on the sidelines the whole time. The matter was in litigation, set to go to trial in two weeks. The mediation was set up on about 3 days’ notice. Each party appeared with counsel.

Before the mediation started, plaintiff’s counsel told me that she wanted to speak with defense counsel separately and without me. I made the introductions and left the room. When that discussion concluded, plaintiff’s counsel told me she wanted to speak with defense counsel some more, again outside of my presence. So, again, I arranged for that conversation to occur.

The next thing I knew, counsel were having lengthy conversations brain-storming ways to resolve the case while I sat in my office playing solitaire on the computer. After about an hour, I knocked on the door to the conference room to see how things were going and was told that they were still working things out and would get me when I was needed.

After about another hour, the attorneys emerged and came into my office to advise that they had decided that the matter could settle in one of two ways but more information was needed to determine which option was the best. They told me they would keep me posted and would need my help in “closing” the deal. That is, while they agreed on the possible broad outlines by which to settle, they believed they would still need my assistance to implement the finer points or details of either option to reach resolution. They figured they could do this by telephone; a further in person session was not needed. I agreed and told them I would check with them in a few days to see if the further information was obtained that would enable them to implement one of the options.

At the beginning of the mediation, when plaintiff’s counsel asked to speak to defense counsel alone, I pointed out that half the battle of settling a case is getting all the right parties with the authority to settle and their counsel in the same place at the same time so that they could all focus on the same issues together and with minimal or no interruption. As we all know, it is difficult to focus on any one thing when one is multitasking; yet daily life demands just that. Our interruptions get interrupted by interruptions which are in turn interrupted by more interruptions and so on….

So… along with self-determination, I guess another part of my job description as a mediator is simply to provide a “safe” meeting space where all the necessary parties can focus on the same issue at the same time, together. To me, this is the major obstacle to resolving anything.

Did I act as a mediator in this matter? I would say “yes” – I provided “self-determination” both as to “process” and hopefully, with my help and assistance-as to “outcome”.

Mediations like everything else in life can take all different shapes, sizes and forms!

… Just something to think about.


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