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Chipping Away at Self-determination

by James Stovall
January 2018 James Stovall

“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. (From Standard 1: Model Standards of Conduct for Mediators)

It is significant that self-determination shows up at the top of the list of standards that mediators are encouraged to follow. Self-determination in mediation is not merely an afterthought or an add-on to a list of things that mediators are supposed to do. It is number one. It is the major priority.

Those of us committed to keeping a focus on self-determination should be aware of the forces working against us. As a mediator with a focus on family and divorce matters I am constantly made aware of the tendency among other professionals who may provide a useful service such as parent coordinators, guardians ad litem, custody evaluators, and hearing officers to ignore self-determination. In all of these other roles, the professional either has decision-making authority or can make a recommendation to the judge which is most often adopted and becomes an order of the court. Mediation stands alone with its primary focus on party self-determination.

For many lawyers, legal representation means convincing their own client how they need to resolve the matter. While clients are supposed to have the final say, most lawyers go to great lengths to encourage the clients to put aside their own preferences. For judges, most do the best they can under some very difficult circumstances. The courtroom is often a “pressure-cooker” environment where the judge is very limited in what she can do. They are required to roll the dice, pick a side and make a decision.

Too often we simply pay lip service to the idea of self-determination, yet when it comes right down to it, we end up imposing our own views. We then shake our heads in judgement of the client’s unwillingness to listen to the professional. As the mediator shares information intended to lead the parties to a specific outcome, presents options, and tries to keep people “on track”, party choice often gets chipped away and shoved aside.

For myself, I too am guilty. I become impatient and at times I allow my impatience to lead the parade. I have these sermonette’s and words of wisdom that (I like to think) will turn these people into wise responsible adults and good parents

I don’t think that we chip away at self-determination because we are bad people. We do this because: 1) we believe, at some level, that we have the solution to the problem at hand and that the parties will benefit from my solution 2) As well- paid professionals we feel pressure to come up with an answer 3) We lack confidence in people’s abilities to come up with a viable solution on their own 4) It feels so natural and normal to lead people toward a solution. 5) We feel pressure from outside forces (program administrators, judges, lawyers and other referral sources) to reach an agreement. 6) I know that my intentions are pure and those of the parties are suspect.

Biography


James L. Stovall founded The Mediation Institute, a non-profit organization that promotes the use of alternative dispute resolution processes in governmental, corporate, and family law arenas, in 1992. Mr. Stovall has conducted training workshops in Egypt, India, Indonesia and 23 states in the U.S. He has mediated over 500 cases relating to family, the environment, personal injury, malpractice, and employment issues. Mr. Stovall has conducted trainings for over 1000 individuals including judges, attorneys, executives, and human resource and mental health professionals. He has taught mediation and negotiation at the University of Oklahoma, Oklahoma State University, Oklahoma City University School of Law, and University of Central Oklahoma. He holds a Master of Divinity from Phillips Theological Seminary, a BA from the University of Illinois, and attended Louisiana State University Law School. He is a member of the Association for Conflict Resolution, and is a member and past president of the Oklahoma Academy of Mediators and Arbitrators.



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