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Deciding My Dispute

by Phyllis Pollack
July 2011

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

Somewhere in my mediation training, I was introduced to the American Bar Association’s Model Standards of Conduct For Mediators (“Model Standards”). While these Model Standards are not the “law”, they are principles that should guide my actions as a mediator.

The very first standard is entitled “Self-Determination”.

Subpart A, in part, states:

“A mediator shall conduct a mediation based on the principles 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 more interesting subpart is B:

“A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.”

I raise this issue of self-determination because recently, I have mediated some matters in which a party and/or counsel has asked me what would I do? The counsel or party was not asking for a mediator’s proposal but simply for my opinion on what she ought to do. Take the offer? Make a counter-proposal? Or, what?

My usual response is that I have no opinion. I explain that while counsel/party has been involved in this dispute for quite a long time, I have been involved for only a matter of hours and so do not know enough to have an opinion. Moreover, to quote a old saying, “I do not have a dog in this hunt”, that is, it is not my dispute. The outcome does not affect me; the implications of any decision have no bearing on me.

No doubt, my response frustrates a lot of people because while everyone enjoys autonomy and the ability to make their own decisions, at the same time, they look to “authority” figures (i.e. the mediator) and will tend to obey them. People also want to be liked and will tend to do what others are doing. (See, Robert B. Cialdini, Influence: The Psychology of Persuasion). In sum, the principle of self-determination in the Model Standards creates a tension with the psyches of individuals.

My colleague and friend, Marie Simpson, PhD devoted her June 21, 2011 Two Minute Training Tip to the theme of letting the parties make their own decision. Entitled “The Decision Is Entirely Yours,” (This Week) Dr. Simpson notes that, in essence, some folks are such control freaks or are so competitive to the point that they do not know “. . .when to stop persuading, [and] to put resolution before winning or being right.” Similarly, she notes, some mediators are such control freaks that they too, do not know, when to stop talking and to be quiet and allow the parties to work out the deal, and to prioritize for themselves, what is and is not important. Again, they (ie, the mediators) forget they are “new” to the deal and so do not know all of the intricacies: what may seem important to the mediator may, in fact, be irrelevant to the parties due to other considerations.

In short, it is not always about winning: it is about resolving disputes. . . on terms with which the parties are comfortable and can accept.

It is all about self-determination. . . and I definitely do not have a dog in that hunt!

. . .Just something to think about.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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