This article was published by Andrew B. Mamo in the 2023 issue of the Mississippi Law Journal. It’s LONG – 64 pages – so I’m going to give you an overview of the main points and some questions to think about.
In this article, Mamo questions what self-determination means and why it is considered important in mediation.
He notes that most definitions of self-determination tend to be negative (i.e. self-determination exists once you remove certain things that constrain it). He suggests three main external factors that negatively impact on self-determination:
- Things that stop the parties’ free expressions of mutual assent (e.g. duress, undue influence, lack of legal competence);
- Things arising from the domination of parties by professionals (such as the mediator and the parties’ attorneys) who exceed the scope of their proper authority; and
- Those arising from structural social inequalities that disadvantage one party relative to another.
He asks whether, when there are no external constraints, parties can be assumed to have self-determination, or whether more is required? In particular, he wonders whether there can be internal limitations that could constrain an individual’s self-determination, such as internal cognitive failures that limit a person’s ability to make rational choices.
Mamo compares the facilitative and transformative approach to self-determination. He explains that facilitative mediation assumes that self-determination is important for rational engagement in the conflict (necessary so that a person can identify their interests, generate options and alternatives, and decide between them based on some relevant criteria). In contrast, he notes that transformative mediation assumes that people inherently have self-determination, and that surfacing that allows parties to become empowered and recognise other perspectives.
As I read the article I wondered what was the difference between ensuring self-determination, surfacing self-determination, and developing self-determination?
Mamo suggests an approach that focuses on the “self” aspect, rather than the “determination” aspect. He argues that mediators can use their power as a “supportive generative force” to help parties develop their selves in a way that works for them in the conflict. In other words, mediators can support parties to identify what they want to achieve, how they want to engage with conflict, and who they want to show up as when they engage with conflict. He states that mediators “can offer psychologically complex disputants —who may be emotionally caught up in conflict and may be gripped by certain myths about mediation, litigation, and conflict behavior—the opportunity to become mediation parties who can reason about their participation in the mediation”. He suggests that mediators can support parties to transform their ‘self’ to internalize a constructive approach to mediation. This is not just about changing disputants’ behaviour, but changing their sense of self and creating different relationships to themselves and others. He doesn’t use this term, but it seems to me he’s talking about mediators supporting clients to shift their mindset to one that is more constructive in their situation.
Mamo argues that the mediator can support this development of a party’s self by doing two things. First, unsettling the subjects so they perceive the limitations of their own perspective on the conflict (e.g. through sustained reflection). Then, second, modelling how to do the work of participating constructively in mediation.
Mamo suggests that, “The test of self-determination is whether the parties have chosen to engage with the mediation in ways that make sense to them and whether the mediator has helped the parties become the best versions of themselves to make those choices – as skilled problem-solvers or as fighters or otherwise”.
I guess the still unanswered question is who decides what is a person’s “best version of themselves”?
QUESTIONS
- What are your thoughts about self-determination being usually defined as the absence of external limitations or constraints?
- Can you think of examples of a lack of self-determination that is based on internal limitations or constraints?
- Do you believe that people are inherently capable of self-determination, or that they need support to be able to achieve this?
- How do you think that mediators can support clients to “be the best version of themselves” in a conflict situation?
