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Defining Success in Mediation: An Ethical Response

January 24, 2016

What is the definition of “success in mediation?”

Is it “getting the deal done” or is it something else?

Such a question arises from time to time, in mediation and elsewhere.

Most recently the question arose for me while I was participating in a Continuing Legal Education course on Mediation Ethics.

The tension exists as between the commercial aspect of “getting the deal done,” on the one hand, versus the defining cornerstone of mediation – self-determination – on the other hand.

On occasion, I have heard mediation participants call the mediation “unsuccessful” when the dispute does not settle then and there at the mediation.

When this occurs (yes, parties do sometimes choose not to settle at a mediation if it is not right for them at the time), my response usually goes like this:

“You know, the dispute still may settle but later as a result of the mediation or if circumstances change. If not, I think the mediation was successful nevertheless, in that each side learned more about the other side, about themselves, about the predicaments they face and about the possible solutions. It may be that the chosen solution ultimately is to commence or to continue with litigation; yet, so long as it was an informed decision, to me the mediation was successful.”

My awareness of our ethical responsibilities as mediators forms the basis of this response.

Standard 1.A. of the ABA Model Standards of Conduct for Mediators (2005) provides:

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.

http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/model_standards_conduct_april2007.pdf (hereinafter “ABA Model Standards”).

See also, Rule 3.853 of the California Rules of Court [“CRC”] [“A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties.”]

In addition, Standard 1.B. of the ABA Model Standards states, and I think this is important:

A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

So, defining “success” as “getting the deal done” may not be the best definition.

CRC 3.853 (2) and (3) also say this:

“[A mediator must] [r]espect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and … [a mediator must] [r]efrain from coercing any party to make a decision or to continue to participate in the mediation.”

So, for me, if people have made an informed decision — either to prepare and sign a settlement agreement, on the one hand, or, alternatively, to terminate the mediation and depart on the other hand –, the mediation has been successful either way because the participants have decided for themselves.

Thus I define success in mediation as “informed voluntary decision-making” and not necessarily “getting the deal done.”

Of course, if they settle at the mediation, that is an extra bonus for everyone.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

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