Standard I of the Model Standards of Conduct for Mediators is entitled “Self-Determination” and admonishes us that “a mediator shall conduct a mediation on the principle of party self-determination.” It then defines “self-determination” as” …the act of coming to a voluntary uncoerced decision in which each party makes free and informed choices as to process and outcome. “(Italics added.)
“Informed “choices” is simply “informed consent.” And when referring to mediation, informed consent has two aspects: participation consent and outcome consent:
Participation consent requires that parties make a conscious, knowledgeable decision to enter into the mediation process and to continue participating in good faith. Outcome consent requires an agreement be reached with an understanding of its content, its consequences, and what entitlements may be waived by giving consent” (Waldman, Ellen, Ed. Mediation Ethics, ( Jossey-Bass, San Francisco, Ca. 2011) at p. 147.)
I recently conducted a mediation ordered by the court. And I started thinking about whether there was truly “informed consent” and thus self-determination. There certainly was no participation consent in that the court ordered the parties to mediation. The parties had no choice: it was not a “conscious, knowledgeable decision” on their respective parts to enter the mediation process.
And whether they participated in “good faith” is questionable. While the plaintiff was attending mediation in the hopes of resolving the matter, the defendant forewarned me that settlement was not possible. The defendant advised me that it had no intention of compromising or in any way providing any of the relief that the plaintiff requested. The defendant wanted the court to decide the matter (even though the court was signaling the opposite!)
Wikipedia defines “Good faith (Latin: bona fides, sometimes spelled “bona fide”), in human interactions, is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. ”
If nothing else, the defendant was open and honest about its position but was the defendant “fair” in that it attended the mediation with its mind already made up, a closed mind. It was simply going through the motions of appearing because the court told it to do so. It would not listen much less consider anything the plaintiff had to say. It was unwilling to ponder any way to reach a resolution that was acceptable to both parties.
During the mediation, the plaintiff proposed a straightforward way to resolve the matter; the defendant refused to consider it, sticking to its original position that the judge should decide. And this is even after reminding the defendant that the Court (by ordering mediation) was sending a not-so-subtle signal that it wanted the parties to settle!
So- was the defendant attending mediation in “good faith”? I will leave it to the reader to decide. However, I question the value of the court sending a matter to mediation when one party is adamant against settling. While the court no doubt had good intentions, it can not force parties to settle and before ordering parties to mediate, the court should ask two fundamental questions; do the parties want to attend mediation, and are they willing to consider compromising?
…Just something to think about.