“I’m doing it because I want to, not because you told me to,” said in a mocking na-na-na-na-na sort of way, was a line heard often between my siblings when I was a kid. Nobody wanted to be bossed around by a sibling. So if you happened to want to do something a sibling had told you to do, you made it clear that it was your own choice. This phenomenon, of people wanting to make their own choices, seems to run pretty deep.
Sometimes called “freedom” or “liberty”, autonomy is a big deal to people. In mediation, we use the term “self-determination”. Sometimes, mediators talk about self-determination only to distinguish mediation from arbitration or adjudication. In mediation, no one has the official authority to order you to do something. But self-determination in mediation needs to mean more than that.
One of the reasons conflict is so unpleasant is the parties’ felt loss of autonomy. Even before judges or lawyers get involved, when we’re in conflict we feel that the other party is trying to do something to us against our will. Maybe they’re telling us to pay them money; maybe they’re telling us when we can see our kids, maybe they’re refusing to give us money we believe they owe us. Somehow, they’re doing something we don’t like to us against our will. We hate that.
One reaction, when we feel our autonomy being violated is to try to find someone more powerful to help. That’s what judges provide. They have the power to issue an order that, if necessary, will cause an armed law enforcement officer to retrieve the property, the kids, or the money. And there’s a place for that approach. But that approach does not tend to lead to a greater sense of autonomy for either side.
The most profound affect that mediation can have, when conducted with the intention to do so, is to give parties the real experience of having autonomy. Mediation can be an experience of consistently receiving support for making one’s own choices and taking whatever actions one chooses. Parties can experience having real choice when the mediator genuinely let’s go of any preference for the parties to make any certain decisions. When following the transformative model, mediators can let go of any preference around:
- whether the parties choose to participate in mediation
- whether they choose to talk directly to each other or through their representative
- what they talk about
- what they say
- how they say it
- when they suspend mediation
- when they restart mediation
- when they end mediation
This sense of autonomy opens up the possibility of parties choosing to treat each other with greater respect, kindness, or at least understanding.
But if the parties get to decide all of these things about the process, what does the MEDIATOR get to do? The short answer is “plenty”. The slightly longer answer is that the transformative model offers a lot of guidance for how a mediator can support and enhance the conversation, while leaving all the decisions to the parties.
A divorce lawyer once told me that she had a client who didn’t want to take the $10,000 that was the client’s fair share of her soon-to-be ex-husband’s IRA account. The client felt that the rest of their divorce agreement was satisfactory, and she knew that her husband felt very strongly attached to the entire IRA account. The lawyer explained that she told her client “if you want to give him a $10,000 gift next Christmas, that’s up to you, but I can’t allow you to give up marital property that you’re legally entitled to.”
I don’t know where the client’s choices were coming from. Maybe the lawyer’s advice was helpful to her. But I suspect that the client did not feel particularly autonomous around this decision. Mediation, if done in a way that respects autonomy, can support a client such as this one as she explores any mixed feelings she has around this issue. And the power of mediation lies in its ability to help clients do things because they want to, not because anyone told them to. Transformative mediation places autonomy at the heart of the process, where it belongs.
By Dan Simons