One of the most important aspects of mediation is self-determination. Standard 1 of the Model Standards of Conduct for Mediation is entitled “Self-Determination.” It provides that a mediator shall conduct a mediation based on self-determination which it defines as the “act of coming to a voluntary uncoerced decision in which each party makes free and informed choices as to process and outcome.” (Standard I A). Yet, this standard then provides an inconsistency:
1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party determination with a mediator’s duty to conduct a quality process in accordance with these Standards” (Id. at Standard I A 1.)
In sum, while party self-determination is paramount, at times, a mediator may have to override a party’s determination by choosing another process design. One example is the mediator’s decision to hold a separate caucus although a party wants a joint session or vice versa. Another example is a mediator’s decision to terminate a mediation even though all of the parties want to continue.
Which presents the question, “Is the mediator a choice architect.?” I came upon this term reading Nudge: The Final Edition by Richard Thaler and Cass R. Sunstein (Penguin Books 2021) which is the updated version (from cover to cover) of their book Nudge published in 2008.
They define a “choice architect” as one having “… the responsibility for organizing the context in which people make decisions.” (Id. at 3.) As an example, they discuss Carolyn- the manager of a school cafeteria. She must decide in what order to place the food items – should the desserts go first, or should the salads? Should she choose the food order at random? Or arrange the foods so that the kids choose the healthier foods or the foods they would normally pick on their own? Or should she place the foods so that the more expensive foods appear first, thereby maximizing profits for the school district? (Id. at 2.)
As one can see, such simple choices will impact the nutrition received by the children and their behavior after lunch. Will they be sleepy in the afternoon because they ate too many carbs? Or, totally wired because they ate too much sugar?
And the authors make an important point: “There is no such thing as a “neutral” design:”
…small and apparently insignificant details can have major impacts on people’s behavior. A good rule of thumb is to assume that everything matters. In many cases, the power of these small details comes from focusing people’s attention in a particular direction.” (Id. at 4.)
And this is where” nudge” fits in: “to push mildly or poke gently in the ribs, especially with the elbow.” (Id. at 5, note *). By “choosing a particular arrangement of the food options at lunch”, Carolyn can “nudge’ the students into eating a healthy meal. (Id.)
So- is the mediator a choice architect when she chooses the process by which the parties mediate? Should the mediation be held in person, via videoconference, by telephone or a hybrid of these? Should she hold joint sessions or separate caucuses? Should she set the agenda and decide which issues are discussed first or should the parties do this? Should she meet with the parties only or the attorneys only? Should she decide whether and when mediation confidentiality applies or is this up to the parties to decide? Should she meet with party A first, or party B? Does the order in which she meets with the parties matter? Should she only ask questions (as in the Socratic method), or should she provide information? Should she be evaluative or avoid doing so when asked for her opinion? Is she influencing either implicitly or explicitly the outcome of the mediation by any of these or the other myriad of “nudges” that occur during a mediation?
As the authors noted, “Everything matters!” I will leave it to you to decide whether such control over process design means the mediator is indeed a choice architect and by “nudging”, she affects the resolution of a dispute.
… Just something to think about.