The Unfulfilled Promise of Self-Determination in Court-Connected Mediation

Authors

Peter Reilly, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

8-2023

Journal Title

Florida State University Law Review

ISSN

0096-3070

Abstract

In the context of mediation, party self-determination refers to the ability of disputants to have power, control, and autonomy in the process. There are numerous process design questions involved in running a mediation, no matter its subject matter. Consider just one example: “Should the mediation be conducted in-person, or virtually?” The answer to this question can have a profound impact on the direction and course of a mediation, including its outcome. Yet, in the context of court-connected mediation, disputing parties are not consistently provided the opportunity to give input on how such process design questions are resolved. In fact, these decisions are typically made by mediators, courts, program administrators, counsel, or others—all of which conflicts with the MODEL STANDARDS OF CONDUCT FOR MEDIATORS’ declaration that disputing parties may exercise self-determination at any stage of a mediation, including process design. In effect, this dynamic represents a significant failure regarding one of mediation’s core promises. The paper proposes a novel solution to this unfulfilled promise: the institution of an Opening Negotiation Session at the start of every court-connected mediation. This joint meeting would involve all participants (mediators, disputants, and counsel) to ensure party interests are accounted for in deciding how four specific process design questions, all explored in the paper, will guide the mediation. This opening negotiation can immediately impact how the mediation will be run as it moves forward, thereby dramatically enhancing party self-determination and leading to a more tailored, empowering, and accountable resolution process for all participants.

First Page

861

Last Page

908

Num Pages

48

Volume Number

50

Issue Number

4

Publisher

Florida State University College of Law

Recommended Citation

Peter Reilly, The Unfulfilled Promise of Self-Determination in Court-Connected Mediation, 50 Fla. St. U. L. Rev. 861 (2023).
Available at: https://scholarship.law.tamu.edu/facscholar/1977

File Type

PDF