Self-Determination in Mediation

By Ehsan Ali and Alnoor Maherali

Mediation is a voluntary process designed to help people reach an agreement or resolve a disagreement. Anyone who has considered or participated in a mediation will have heard that it is their choice to participate. But for the participants it may not always feel this way. Mediation can be mandated by courts, required in workplaces, or included in business agreements as the first mechanism to resolving disputes. In these circumstances, how can mediation be voluntary?

While mediations tend to be more successful when parties want to participate, there are times when one or both sides may not be exactly enthusiastic to be there. In those circumstances, the voluntariness of mediation comes from the fact that: (1) anyone is free to leave the process at any time if it is not working for them, and (2) no decision or outcome can be imposed upon anyone. Rather, the parties maintain control of their fates. They choose the issues that are up for discussion, they identify their needs, they come up with potential solutions to address those needs, and any resolution or agreement must be mutually agreed upon. 

In the world of dispute resolution, this principle is referred to as ‘self-determination,’ and for mediators it is a fundamental principle of their work. For many, in fact, it may be the most important principle and what separates mediation from other dispute resolution processes (Litigation, Arbitration, etc.). In the court system or in arbitration, a disconnected third party makes many or most of the decisions and creates the final outcome of the situation. But in mediation, parties themselves are given the power to choose outcomes that best suit their interests. This feature usually leaves each person better off than if they had gone straight to arguing their sides and having a third party make a judgment (via court or arbitration). This is partially because mediation allows for creativity in finding solutions that are closer to a party’s ideal, but may be very difficult or impossible for an arbitrator or judge to order. 

In this approach, the mediator is thoroughly neutral in that they don’t offer advice, opinions or recommendations. And they do not impose a judgment nor do they enforce a particular solution.  Their job is to provide structure to the process and facilitate an open discussion that helps the parties to better communicate with each other and assess their options. And in some circumstances, that can even be an agreement to walk away. Even if no solution is reached, parties leave with more information and a better understanding of the conflict, which can be invaluable in assessing their options going forward or finding a solution at a later time. 

At Venn Mediation, we firmly adhere to the principle of self-determination because we believe that people have the right and ability to define their issues, needs, and solutions, and to determine the outcome of the process on their own time. We have seen firsthand that the best outcomes to conflicts tend to be generated by those involved, who have a clearer view of the situation than anyone else. And we understand that when people are empowered to come up with solutions on their own, they are more likely to follow through - leading to better, more durable agreements.

Good mediators, like at Venn Mediation, ensure their clients can make informed decisions about their own lives and we respect their right to arrive at an outcome they can be happy with. From situations that are in their initial stages to those already in the legal process, Venn assists our clients to find settlement terms and deals that work for them. If you or someone you know is stuck in conflict, consider reaching out to Venn Mediation. We are based in New York but are experienced in online mediation and can work with people anywhere. Disputes can be difficult, but dispute resolution doesn’t have to be. We would love to help.

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