Negotiation Journal 10:4 (October 1994), pp. 367-372.
Summary by Tanya Glaser.
Copyright ©1997 by the Conflict Research Consortium
In this essay Boskey responds to David Matz's essay "Mediator Pressure and Party Autonomy: Are They Consistent With Each Other?" (see this website for a summary of Matz's article.)
Different attitudes about the purpose of mediation will suggest different beliefs about the appropriate use of mediator power. Boskey argues that there are a variety of views about the purpose of mediation. He describes two. The first view arises from labor and commercial mediation. From this viewpoint the purpose of mediation is to reach a settlement which resolves the dispute. The parties are seen as capable of deciding for themselves what is fair. From this viewpoint, it is inappropriate for the mediator to impose her own judgements of fairness on the parties' agreement.
A second view arises from family and community dispute mediation. From this viewpoint, the purpose of mediation is to insure that settlement is fair by balancing power between parties. Mediation practice should aim at empowerment of the less powerful party, and stresses respect for the autonomy of each party.
These two views rest on different assumptions, and these assumptions may be traced back to the views' different backgrounds.
The first view assumes that the parties can and have made reasonable assessments of their own interests, and of their BATNAs. This view also assumes that, practically speaking, the parties have no viable alternative to a negotiated agreement. The second view assumes that at least one party either has not or cannot assess its own interests and BATNA. This view also assumes that viable alternatives exist for the disempowered party. They may reasonably prefer adjudication, for instance.
The first view admits that the mediator is in a powerful position. However, parties must take responsibility for their own interests. Proper training and certification procedures can be sufficient to keep mediators from obstructing parties' understanding of their own interests. From the second viewpoint, the mediator's position is powerful enough to cause parties to overlook their basic best interests. Parties may seek to please the mediator at the expense of their own interests. Parties' interests may be obscured by either action or inaction on the mediator's part; the mediator may give faulty information, or neglect to pursue empowerment opportunities.
These different assumptions can be traced to differing mediation contexts. The first view is more commonly found in labor and commercial disputes. In those contexts, ongoing relationships allow for injustices to be corrected at later date. It is also more likely that the parties have had the opportunity to gain competent representation, and have developed some negotiating skills. Moreover, mediators from a legal background have been trained to "ignore justice issues in favor of legal ones," [p. 369-70] and so are more comfortable in leaving judgements of fairness to the parties.
Family and community disputes present a substantially different context. In such situations, "parties are usually self-represented and differences in negotiating experience are apt to be substantial." [p. 369] Either there is no ongoing relationship, or the dispute occurs at the end of a long- term relationship. In such cases there is very little opportunity for the future correction of injustices. In contrast to the first view, mediators from therapeutic backgrounds tend to emphasize client empowerment, and finding just solutions to clients' needs.
Cases and contexts vary widely, and so there can be no single simple answer to when the use of mediator pressure is appropriate. However, some general guidelines may still be found.
Boskey's interpretation of the first rule of mediation is that agreements should be voluntary. Practically speaking, all decisions are made within some constraints. Coerced decisions are highly constrained, voluntary decisions much less so. Boskey approaches the question of voluntariness by asking which uses of mediator power place inappropriate constraints on party decision-making.
Boskey suggests first that a party's agreement is not voluntary if it is based on a factual misunderstanding which the mediator created or failed to correct. He argues that mediators should reveal even secret information, if that information would fairly influence the party's decision. For example, the mediator should correct mistaken understandings of the law governing an issue. However, it would be unfair to reveal the opponent's BATNA.
For agreement to be voluntary, the negotiators or parties must generally be mentally competent adults. Situations of limited incompetence may arise. The presence of domestic violence may leave the abused party situationally incompetent to negotiate with the abuser. Subject matter incompetence is also common when a party lacks the relevant knowledge to adequately represent their interests. Boskey suggests that, in the absence of mentally competent parties, mediation should most probably be abandoned.
From Boskey's point of view "a party's autonomy is compromised only in cases where that party has lost the capacity to make the decision to walk away from the agreement." [p. 372] Mediators may legitimately seek to influence the parties' use of their decision-making capacity, but may not subvert the capacity itself. The mediator's task is to "determine that the rational capacity of each party to agree or reject agreement is not compromised." [p. 372] If a party's rational capacity is compromised, it is the mediator's responsibility to terminate the mediation process, and inform the parties of their alternatives.