Self-Determination in Mediation: what I told the Minnesota State Bar Association about it
“I am the master of my fate: I am the captain of my soul.” from Invictus by William Ernst Henley
Inspiring quote, right? Henley wasn’t going through litigation when he wrote it, I’m guessing. When you’re in litigation, you don’t feel like the master or captain of anything. You feel like the victim of lawyers, judges, and the opposing party. Mediation can be the path back to being the master of your fate, but only if the mediator gets how important your self-determination is.
Here’s a talk I gave at Minnesota CLE’s ADR Institute a few months ago about why party self-determination is such a big deal:
Transformative Mediation: What’s meaningful about it.
I was leading a mediation practice group for the Institute for the Study of Conflict Transformation (ISCT) a while ago, and I got inspired to talk about why I love doing transformative mediation. This was during the Covid lockdowns, so it was happening on Zoom, and my cat, Harvey, participated.
Short answer, anyone who’s interested. The people who attend my courses have ranged in age from 18 to 90. They’ve been college students, law students, psychology students, lawyers, therapists, coaches, judges, retired judges, teachers, human resources professionals, police officers and just about every other profession. We all have conflict in our lives. A course on transformative mediation will give you a way to think about conflict that will help you (1) notice when you’re engaging in conflict destructively (2) do what it takes to get yourself to a clearer, stronger place and (3) make better choices about your interactions.
Some participants are already working professionally as mediators and want to learn a deeper approach. Other participants want to start working as mediators and take the course to qualify for the Minnesota Supreme Court roster or for panels in other jurisdictions. There are no prerequisites other than the desire to become more effective at handling conflict, whether for yourself or to help others.
I want this new website to give you easy access to anything you want to know about transformative mediation or transformative mediation training. As part of the new site, I’m planning to release video blogs regularly. I’m going to share quick thoughts about conflict and how we can all handle it well. Long story short, conflict is an inevitable and natural part of life. While it can be frustrating and overwhelming, it can also be incredibly meaningful. What is more important than standing up for yourself? The only possible answer is caring for others. Obviously, we all want to do both. And that’s what makes conflict so challenging. We don’t want to assert ourselves at the expense of everyone else, but we also don’t want to be victimized by anyone. The process of balancing our needs with others is what it’s all about. Ideally we take good care of ourselves AND the people we interact with.
Now available for pre-order! Self-Determination in Mediation: The Art and Science of Mirrors and Lights
Tara West and I wanted to explore how mediators can maximize parties’ sense of agency throughout the process. So we wrote Self-Determination in Mediation: The Art and Science of Mirrors and Lights. We discuss how mediators tend to control the process far more than they need to. Sometimes they’re motivated by the hope that they can nudge the parties toward agreement, other times they hope to protect one party from the other, often they naturally want to appear competent and effective. Usually, attempts to get parties to do anything in particular does more harm than good. That reality raises the question of just what mediators can do to enhance party agency, as well as maximize the chances of other good outcomes.
The answer, as we see it, boils down to honoring parties’ choices in each moment of the process about everything possible. The book describes how we first, leave every possible process choice to the parties. Second, we explore how we hold up a “mirror” to the parties, often reflecting back what they’ve said in their own words. Third, we discuss how we shine “lights” on the situation the parties are in and on their opportunities to make more choices. In addition to telling mediation stories, we explore the research that supports our suggestions.
One of the bodies of research we describe is connected to “self-determination theory”, which posits that people have the fundamental need for autonomy, competence, and connection. We discover that in the context of mediation, meeting these needs is especially important. Conflict is characterized by a sense of diminished autonomy, competence and connection. If those needs can be met in the process, better decisions are also likely to emerge.
Here’s the transcript of the part of the video where I introduce myself and explain how I came to be a transformative mediator:
My name is Dan Simon. I’m a transformative mediator. I’ve been doing that for 10 years now (as of 2008, that is. I started in 1998). I started out, went straight to college and law school. I think I got through law school before I really knew what I wanted to do with my life. I started to get clearer about what I wanted to do with my life while I was doing my first job out of law school, which was writing head notes for West Publishing. I decided to go back to school to study psychology, got a masters in counseling psychology. Then, when I finished the masters, I decided to go on my own doing mediation. In the interim before I went back to school studying psychology, I worked at a law firm doing business litigation for one year. What I Noticed While Practicing Law as a Litigator:
Actually, that’s where I first noticed that the stuff we were doing as lawyers was not really directly addressing the conflict as I saw it. It seemed to me that our job as lawyers was to do whatever we could to mess with the other side in hopes that would motivate them to cave in, give our clients some money.Though our clients often were satisfied with what we did, it’s not that their conflict had ever really been resolved. At some point, it was over and they’d given up with it and they thought we had done a decent job either getting them some money or helping keep their costs to a minimum. Bottom line is, they were never at a better place with the conflict than when they started. They still thought the other side was full of it, was a liar a cheater, or worse. They may have decided to stop fighting but all that had ended was the fight that we helped them start. It had never really gone back and addressed whatever started the problem in the first place.
If you’ve been injured in an accident, a fall, or due to a medical mistake, you don’t need to hire a personal injury lawyer. I can help you have a direct conversation with the person who’s responsible for your injury and their insurance company. This approach saves you from having to pay a lawyer 33% of your recovery, it allows you to talk directly to the person who’s making the decisions, and it goes much more quickly than the traditional route with lawyers. It also allows you to pursue things that really matter to you, like making sure the same thing doesn’t happen to other people.