Introduction

It has been shown in the first part of this book that anyone who occupies a professional role must respect, as part of their duty to be worthy of their clients’ trust, a number of ethical standards that reflect the legitimate expectations of their clients, including their right to self-determination. Our current goal is to examine what the meaning of self-determination is in the context of mediation. The underlying assumption is that the meaning of self-determination is not fixed, but changes with the type of professional activity in question because the role definition and nature of the provided services vary, and therefore clients’ legitimate expectations of professionals vary as well. Self-determination in the context of mediation is not the same, then, as it is in the context of other professional–client relationships such as lawyer–client or doctor–patient.

The self-determination of mediation parties is presented as a fundamental principle of mediation both in codes of conduct for mediators and in the mediation literature. One Advisory Committee Comment to the California Rules, for example, states that “[v]oluntary participation and self-determination are fundamental principles of mediation”; the Georgia Standards consider the self-determination of the parties to be “a hallmark of mediation”; and the Oregon Mediation Association Core Standards of Mediation Practice (Oregon Standards) provide that “[s]elf-determination is a fundamental principle of mediation.” Mediation scholars express similar views. Rene L. Rimelspach, for example, argued that “[i]t is understood that a basic tenet of mediation is that the parties are autonomous and should have the ability to devise their own agreement”; and Laura E. Weidner, in her discussion of the Model Standards of Conduct for Mediators (2005) (Model Standards), noted “the overarching importance of party self-determination” in mediation.

Notwithstanding the consensus on the importance and wide application of the principle of self-determination in mediation, it has been variously phrased and interpreted. As a result, there is no agreement with respect to the extent of the principle's application (which decisions and issues it applies to), its meaning (when a party's decision can be said to have been made in accordance with the principle of self-determination), and the duties of mediators stemming from it (how mediators should conduct mediations on the basis of party self-determination).