Harvard Negotiation Law Review
Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through settlement. Disputing parties are still responsible for making the final decision regarding settlement, but they are cast in the role of consumers, largely limited to selecting from among the settlement options developed by their attorneys. Indeed, it is the parties’ attorneys, often aided by mediators who are also attorneys, who assume responsibility for actively and directly participating in the mediation process, invoking the substantive (i.e., legal) norms to be applied and creating settlement options.
It is quite clear that court-connected mediators are providing evaluations of the parties’ positions (e.g., estimates of the strengths and weaknesses of the parties’ cases, suggestions regarding settlement options, etc.). When offered in the context of a party-centered, facilitative mediation, evaluation can serve a useful educational function and can aid party self-determination by assisting the parties in making informed decisions. As mediation has become increasingly institutionalized in the courts, however, a small but growing number of disputants have approached courts and ethical boards to claim that mediators’ aggressive evaluation or advocacy for particular settlements actually coerced them into a settlement.
In response, Florida and Minnesota chose to permit evaluation in their ethical guidelines for mediators, but incorporated safeguards pronouncing party self-determination as the paramount goal of mediation and clearly prohibiting coercion by the mediator. This Article urges that despite the aspirational language and the good intentions underlying Florida’s and Minnesota's ethical guidelines, the narrowed vision of party self-determination that is now institutionalized in these guidelines will be understood as no different from the free will which is to be exercised by parties involved in judicially-hosted settlement conferences. In that context, when parties have alleged that the judge or magistrate presiding over their settlement conference coerced them into reaching a settlement agreement by evaluating the parties’ cases or urging a particular settlement, the courts have generally refused to find coercion unless the judge or magistrate engaged in outright threats or issued sanctions. Indeed, one court has written, “We do not agree that a judge should refrain from offering his or her assessment of a case on the eve of trial, solely to avoid the appearance of impropriety. Such a policy would effectively render meaningless a judge’s role in the settlement process.” It is unlikely that the courts or ethical boards responsible for interpreting and enforcing mediators’ ethical guidelines will judge aggressive evaluation as coercive just because it occurred within the context of a mediation rather than in a judicially-hosted settlement conference, especially if the vision of party self-determination in mediation is no longer grounded in the concept of party empowerment.
This Article examines several possible means to protect parties’ self-determination in mediation and ultimately advocates for the adoption of a three-day, non-waivable cooling-off period before mediated settlement agreements may become enforceable. This modification would permit the continued use of evaluative techniques as a means to educate parties and inform their decision-making while rewarding the use of techniques (often facilitative) that increase parties’ commitment to their settlement. The more committed parties are to their settlement, the less likely it is that they will withdraw from the settlement during the cooling-off period. Ultimately, this proposal has the potential to keep “muscle mediation” in check while also allowing the return to a vision of self-determination which is closer to that which first dominated (and inspired) the contemporary mediation movement.
Nancy A. Welsh,
The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?,
Harv. Negot. L. Rev.
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