One of the most essential principles of mediation (if not THE most) is self-determination which “…is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” (Standard I, Model Standards of Conduct for Mediators.)

Rule 1.01(e) of the California Rules of Professional Conduct defines “Informed consent” as “ a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct. “

And then there is the Serenity Prayer:
God grant me the Serenity
To accept the things I cannot change,
Courage to change the things I can,
And the Wisdom to know the difference.

May I suggest that self-determination and the serenity prayer have much in common? As a mediator, I must allow the parties to make their own free and informed choices regarding the outcome and the mediation process. I am not there to impose my opinion on the parties. They may have values, opinions, or perceptions I cannot change. Yet, they may also have values, opinions, or perceptions that I can change. As a mediator, I need to have the wisdom to know the difference. While my role is to help the parties find common ground on which to resolve a matter, I do need to have the wisdom to know the difference between which aspects of a person’s thinking I can help shift and which aspects I cannot shift. My goal is to help parties shift their perspective on the matter so that they view it in enough of a different light to reach common ground. Specific shifts are possible; certain shifts are not, and I need the wisdom to know the difference.

Likewise, from a party’s perspective, each party must accept the notion that perspective-shifting in the other party has its limits. No matter how vigorously a party urges a point, the other party may not shift its perspective. Each party has a limit on how much he/she is willing to move or how little or how much he/she is willing to pay. As in the Serenity Prayer, each party must allow the other party self-determination. To do this, each must have the intuition and courage to attempt to change the other’s perspective and the wisdom to know when it is impossible. In every negotiation, there is a line above/below which a party will not move; both the mediator and the other party must have the wisdom to discern this.

In sum, both the mediator and each party must have the ability to know what each can “control” in terms of both the process and outcome of a mediation, what each cannot “control,” and most of all, the wisdom to know the difference.

It is all rather humbling.

… Just something to think about.

 

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