Consent in Mediation

The last family meditation I did got me thinking more specifically and carefully about the principle of ‘consent’ in mediation. In this context it had to do with the option of parties to bring supporters or other individuals concerned and/or involved in the issues at hand to the mediation and that the decision to do so must be ‘by mutual consent of all parties’. Mutual consent is a fundamental principle in mediation to assure that the process remains as fair and unbiased as possible. In the case at hand, during pre-mediation intake, one party had requested a friend join her at the mediation. It was explained to her that her request would have to be consented to by the other party to the mediation.

On the morning of the mediation the party making the request arrived with her friend. We explained again that the other party would have to grant consent. As it turned out the second party nixed the idea immediately.

The initial response of my co-mediator was then that was that – the friend could not join the mediation. This stance of course dovetails with the basic principle of consent – that all parties must agree if anyone else is to participate in the process.

Somehow I wasn’t comfortable leaving it at that. My concern was that this response tipped the balance of power, however subtly, towards one party, the one saying ‘no’. At the same time, the principle of consent needed to be honored. The challenge formulating in my mind was how to honor both parties position all the while maintaining impartiality.

After some discussion we agreed that rather than simply informing the parties that no one else would attend the mediation, we would identify the request as the first issue in the mediation. The goal being to understand, and for each to hear, the underlying reasons for the request and the subsequent denial. Our goal as mediators would be to uncover the interests and needs motivating their oppositional stance. This would give each party a chance to explain themselves and share concerns and feelings underlying their opposing positions; it also communicated to the parties that we took both positions seriously and wanted to understand them. We explained the basic mediation principal that both parties could ask for a pause at any time to consult with their attorney or others supporting them. In this instance the final decision was that the friend would not join the mediation but wait outside with the option for the party to consult.

Reflecting on it later, I believe that by acknowledging the issue and encouraging the parties to discuss it we built rapport with each of them as well as confidence in the mediation process, a process neither had ever experienced and that both initially seemed skeptical, unsure and even fearful about.

In spite of the initial animosity between the parties and their difficulty communicating during the process, evaluations at the close of the mediation were positive.

                        author

Katherine Stoessel

I specialize in Family and Workpace Mediation and Restorative Practices. As mediator, facilitator and coach for over 20 years, I work with families, teams and individuals to help resolve personal and professional conflicts, whether they be new and unexpected conflicts or long standing, simmering conflicts that feel intractable. As an… MORE >

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