Why Does Anyone Mediate if Mediation Risks Psychological Dissatisfaction, Extra Costs, and Manipulation? Based onImperati and Maser, 29 Ohio St. J. On Disp. Resol. 223 (2014)
Explore the three paradoxes that afflict mediation. First, if self-determination is a psychological need motivating the parties and the mediator, how can the parties and the mediator jointly satisfy their potentially conflicting needs? Second, if parties are having difficulty resolving their conflicting individual interests and incurring costs in the process, why would they invite a third party into the conflict who has his or her own interests and adds costs? Third, if it is impossible to guarantee that any collaborative decision-making process can be immune to manipulation by one of the participants, including the mediator, why would parties expose themselves to the risks of mediation? Three mutually reinforcing theories (Self-Determination Theory, Transaction Resource Theory, and Collective Choice Theory) reveal these paradoxes. We will explore them by drawing upon theories from Psychology, Economics, and Political Science.
Major topics include:
1) These common assertions are arguably erroneous: A) parties own the outcome; mediators own the process, and B) mediators have no preferences over outcomes.
2) Mediation works because of a mediator’s judicious (ethical) application of heresthetics and rhetoric to serve the participants’, including the mediator’s, psychological needs for self-determination and efficient use of transaction resources.
3) Parties and a mediator who agree on ethical standards of practice satisfy their intrinsic needs, reinforcing self-determination; solve a divisible prisoner’s dilemma problem at low cost; and mitigate manipulation.