Self Determination is a cornerstone of Mediation.
Mediation is not like trial or arbitration. In trial or arbitration a neutral third party (the judge or arbitrator) makes a decision for the parties – who is right and who is wrong, who wins and who loses, and by how much. Mediation is not like that at all.
A mediator is not a judge or arbitrator. He or she does not decide the outcome of the mediation. The mediator helps the parties to decide the outcome for themselves. And the mediator has no power to force the parties to decide.
The key to mediation, in this writer’s view, is self-determination, which goes hand in hand with voluntariness, i.e., whether to participate at all, whether, how and when to negotiate, whether to make concessions and how much, whether or not to settle. All of this is left in the hands of the disputants who are ably assisted by their counsel. They decide, and they do so after weighing the risks, uncertainties, costs and expenses of not settling as against the certainties and benefits of settling.
In most cases, the parties DO decide the outcome for themselves, whether or not they settle, and their self-determination is honored and respected. The conflict belongs to them after all, not to the mediator. (Of course, like most mediators, this writer likes to see the parties make peace with one another, come to terms and resolve their dispute.)
Sometimes the parties say they are stuck. Occasionally, they ask the mediator for a mediator’s proposal in order to close the deal. In this instance the parties have gone as far as they feel they can, and there is still a gap such that they have not come to terms. They say they are at an impasse. They want the mediator to propose a deal that both can accept.
But are they really dodging their own responsibility to decide for themselves? Have they abandoned self-determination? Maybe. Maybe not. After all they can choose to refuse the mediator’s proposal.
In rare cases, after reminding the parties of the value and the ideal of self-determination, this mediator has made the fateful mediator’s proposal, albeit reluctantly.
The case may then settle, and the parties may be satisfied, or not. Yet this writer believes that something has been lost in the process, and the parties’ right of self-determination has suffered.
This is why, ultimately, this writer is reluctant to inject his own values of the case into the process, except perhaps as a last-ditch effort to help the parties settle.
But it should be for the parties to decide how much their case is worth, not the mediator.