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Mediatees Have The Right To Make ‘Bad’ Decisions

by Randy Drew
May 2016 Randy Drew


Self-determination (volition), sometimes, means mediation participants get to make ‘bad’ decisions

There’s nothing else like mediation! Arbitration is not like mediation. In arbitration, like litigation, someone ultimately imposes a decision on you. In mediation, the participants own the outcome, specifically because they are the decision makers. That ownership creates the buy-in, which lends itself to the durability for which mediation is so famous. See: Defining Mediation

One of my more uncomfortable lessons, early in my studies of mediation, involved coming to grips with the reality that participants have the right and responsibility, within the confines of capacity and conscionability, to make their own choices, good or bad. I am not a mental health professional. My approach to capacity is that it is either obviously absent or it is not obviously absent.

Is taking a job for less money, but with a cooler boss a bad decision? Could you ever imagine a scenario where you would be willing to trade $10,000 for an apology, if you didn’t have to come up with the money? Is giving someone whom you wish you could love a better custody & visitation agreement a bad deal? Mediated agreements or the lack thereof send important signals.

Since my early days with mediation, I have seen some things that have helped put my mind at easy about bad choices. Accepting less visitation than is customary may not feel right to you or me; but who’s doing the giving? Not the mediators. Giving first right of refusal for all holidays to the other co-parent may not seem rational. Not being ready for the conflict to end, even when being offered an exceptional deal, may simply be a request for more processing time (think-time), or time for the conflict or evolve or ripen.

“There is no such thing as a neutral question.” - Gail Bingham, "Views from the Eye of the Storm" Video Interviews with Leading Mediators, mediate.com. The mediators’ opinions are the only ones in the room that don’t count. I try to hold these two thoughts in my head. 

It’s okay for participants to leave with a frozen (managed) conflict, with new strategies and tools for coping, with new insights, with a memorandum. That too is mediation (conflict engagement – Bernie Mayer, ‘Beyond Neutrality’). It doesn’t mean mediation didn’t help them; and it doesn’t necessarily saddle them with an ever-unresolved dispute. Relational complexities may dictate that the conflict participants cross the finish line without the mediator.

Biography


Randy Drew is a mediator in Southern California.  Pepperdine School of Law’s Straus Institute For Dispute Resolution found L Randy certifiable, in 2008.  He earned his Master’s degree from Pepperdine’s Graziadio School.  His undergraduate degree is in Economics.  Randy has been working with community and consumer issues, for more than 20 years.  He has personally engaged with people in their homes on 10,000 occasions, and remotely (by email, phone, or other means) 15,000 times, regarding 25,000 distinct issues in dispute.  In 2014, Randy became a Co-Founder and Program Director for the So Cal Family Mediation, model mediation program, including training and supervising law school students, in partnership with the Los Angeles County, Superior Court, Edelman Children’s Court.



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