WHAT I’VE BEEN READING: Self-Determination in Mediation by Dan Simon and Tara West

This latest book by two transformative mediators provides a valuable addition to the transformative mediation bookshelf, with an in-depth look into the way that transformative mediators perceive self determination in mediation, and how they support it in practice. The book includes many case studies to demonstrate how this underlying principle works in various situations, including a range of different kinds of conflicts and mediations involving lawyers.

The subtitle of the book “The art and science of mirrors and lights” refers to the metaphor used throughout to describe two of the main techniques used by a transformative mediator: the first is reflection or “mirroring” back to the person what they’ve said and how they’ve said it; the second is helping the client to pay attention to opportunities to develop empowerment and recognition by “shining a light” on what they each shared in the conversation and their opportunities to make choices. Transformative mediators use the parties’ demonstrations of lack of empowerment or recognition as signals suggesting that their reflections, summaries, and check-ins would be helpful at those points.

The first two chapters in the book introduce the fundamental concept of self-determination and how it fits into the transformative model of mediation. The following two chapters show how self-determination can assist in building connection between people in conflict, and also how it can support problem solving. Chapter 5 describes how transformative mediators use mirroring and highlighting opportunities for empowerment and recognition as ways to promote self-determination. Chapter 6 discusses the temptation to nudge parties toward agreement, and how this can work against self-determination.

In Chapter 7 the authors assert that self-determination is the best protection. They argue that the mediator is in no position to be either party’s advocate or defender; efforts by a mediator to protect parties are likely to do more harm than good; that when a party is at risk of being victimized, their self-determination is especially important, and that supporting party agency is likely to reduce abuse, trauma, coercion and unfairness, by empowering potential victims and creating more room for responsiveness by potential bullies.

Simon and West pose this provocative question:

“If a richer party with a team of lawyers on retainer is threatening a poorer party who cannot afford to litigate, is the poorer party’s choice to take the meagre offer necessarily lacking in self-determination?”

This chapter, for me, was the most challenging one to process, and I found it an interesting juxtaposition to another book I recently read by Bernard Mayer and Josephine Font-Guzman called The Neutrality Trap. Simon and West are effectively saying mediators should “do less”, while Mayer and Guzman argue we should “do more”. Simon and West suggest that it’s not the mediator’s role to evaluate and correct situations of injustice or power imbalance, whereas Mayer and Guzman state that when we do not intervene, we are effectively choosing to side with the status quo. However, transformative mediators see that they are, in fact, being very active in the support they offer – it just is a very different kind of support than a facilitative or evaluative mediator might offer. Transformative mediators believe that the kind of support they provide will help people move out of the vicious circle of conflict (leading to justice and all sorts of good things), but they don’t try to push, pull, or nudge people anywhere. Here’s Baruch Bush’s article on the topic of mediator activism and how it fits with the transformative framework: https://www.linkedin.com/…/mediation-social-justice…/

I wonder, when parties have different ideas about procedural choices for the mediation (a topic discussed in chapter 8 of the book) whether the same situation arises. In other words, by not intervening to make a decision, the mediator effectively supports the person whose choice is based on the status quo. Is this a bad thing? I’m not sure!

As I understand it, the transformative mediator’s response in situations where they believe a party is being victimized is to withdraw as the mediator, to refrain from providing a venue in which the victimization could continue. Transformative mediators try to avoid making assessments of victimization or power imbalances. Instead, they try to support both parties equally. When transformative mediators feel that they cannot fully support all of the parties, that is when they withdraw.

This book provides a really clear illustration of how transformative mediators use “mirrors and lights” to support party self-determination, and case studies so you can see it in practice. If you are a facilitative mediator, some of the content may be challenging, but it is such a good prompt for some deep reflection on your practice.

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