In The Critical Importance of Pre-Session Preparation in Mediation, I explained why parties’ preparation for their mediation sessions can produce many significant benefits. This post suggests that preparation before mediation sessions is an important opportunity for parties to empower themselves.
People have used the concept of “empowerment” in mediation in various ways, as I described in How Will Lawyering and Mediation Practices Transform Each Other? (pp. 858-861). In his book, Mediation, Citizen Empowerment, and Transformational Politics, Professor Edward W. Schwerin defined empowerment as “the process of gaining mastery over one’s self and one’s environment in order to fulfill human needs.” Empowerment of parties in mediation is intended to promote their “self-determination.” Standard I.A of the current (2005) Model Standards of Conduct for Mediators states:
A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
It is significant that this standard identifies parties’ activities before mediation sessions, especially process design. Parties are more likely to feel empowered to make free and informed choices during mediation sessions if they engage with the process and carefully prepare themselves before the mediation sessions.
Whenever appropriate and feasible, before mediation sessions it is desirable for parties to participate in decision-making about choice of dispute resolution process, get advice from lawyers and/or others, obtain and exchange relevant information with their counterparts and the mediators, learn about applicable law if relevant, learn how the mediation process would work in their case, identify and prioritize their goals in mediation, anticipate their counterparts’ perspective, consider the likely outcomes if the parties do not reach agreement, and/or plan possible mediation strategies.
If parties are well-prepared before mediation sessions, they will be knowledgeable, confident, and assertive so that they can exercise their decision-making authority as well as possible. In other words, they will feel more empowered to participate productively.
Generally, parties need help to get ready for mediation sessions. Depending on the circumstances, mediators, lawyers, courts, and/or mediation programs may help parties get prepared. A study by Roselle Wissler found:
The amount of preparation parties received from their lawyers was uniformly and favorably related to parties’ and lawyers’ assessments of mediation in the present study of general civil mediation . . .. Parties who had more preparation for mediation, compared to parties with less preparation, thought that the mediation process was more fair; that they had more chance to tell their views and more input into the outcome; and that the mediator was more impartial, understood their views better, and treated them with more respect. Notably, parties who had more preparation felt less pressured to settle than did parties who had less preparation. In addition, parties who received more preparation for mediation were more likely to settle and were more likely to think the settlement was fair. (Emphasis in original. Footnotes omitted.)
In How Can Courts – Practically for Free – Help Parties Prepare for Mediation Sessions?, I use federal district courts as an example to illustrate how courts can routinely promote preparation by mediators, attorneys, and parties (regardless of whether parties represent themselves or have legal representation). The article includes an extensive appendix with links to written materials and videos for parties, practitioners, and court administrators.
Of course, there is an incredible range of courts, legal issues, parties, etc., so each court should tailor its efforts to promote preparation to its circumstances, ideally using dispute system design procedures. In some cases, there is not enough time or other resources for parties to prepare carefully. Even in such situations, courts can provide clear, helpful, and easily-accessible written materials and/or videos on their websites to help parties prepare before mediation sessions.
Similarly, other organizations that provide mediation and related services (such as ombuds) should take reasonable steps, given their context, to help parties be as ready as possible when the process is convened.
Even without institutional direction, many individual practitioners promote parties’ preparation. Many attorneys routinely prepare clients before attending mediation sessions. Many mediators have routine procedures for obtaining written materials and talking with attorneys or parties before mediation sessions. Len Riskin’s book, Managing Conflict Mindfully: Don’t Believe Everything You Think, provides helpful techniques for parties and practitioners to carefully prepare before mediation sessions and other dispute resolution processes. The Alliance of Mediators for Universal Disclosure has developed a generic set of disclosure guidelines for individual mediators to give parties realistic expectations about the mediation process.
Preparing parties before mediation sessions is intended to promote self-empowerment. Well-prepared parties can take the initiative in making their decisions before and during mediation sessions rather than simply relying on mediators to promote their self-determination.
Good preparation of parties doesn’t absolve mediators of their obligation to promote parties’ self-determination. Indeed, it should help mediators fulfill it.
Thanks to Noam Ebner and Len Riskin for suggestions about this post.
John, I agree that what you refer to here as “empowerment” is an essential aspect of the ethical obligation to promote party self-determination. While there are procedural adjustments that mediators, attorneys, and court personnel can implement to enhance party preparedness, focusing solely on procedures overlooks a crucial dimension of self-determination. This dimension involves understanding how certain interventions not only assist existing individuals in *acting more effectively* but also contribute to the *constitution of the parties’ subjects.*
In my forthcoming article, “Unsettling the Self: Rethinking Self-Determination,” I emphasize that the process of achieving this kind of self-mastery in mediation is inherently relational: The necessary work can only be accomplished by the parties themselves, as even the most skilled mediator employing a well-designed process cannot force the parties to a point where they can take ownership of the dispute. And the parties cannot undertake this work alone, as even the most self-aware and reflective individuals require external stimuli to freely assume responsibility for the dispute. I aim to demonstrate that various “moves” made by mediators, whether at the table or prior to the session, not only serve instrumental purposes but can also help the parties to become different subjects—determining the selves that participate in the mediation.
Crucially, because the process of subject formation is deeply rooted in relationships, its occurrence in a mediation relies on the mediator’s ability to speak candidly from a position of vulnerability—inviting the parties to work upon their own subjects while acknowledging their absolute power to reject this invitation. I hope the piece is useful in thinking about party empowerment.