The Mediator Pressured Me to Settle

I once had a person tell me they would never use mediation again after their first experience. I asked why.  Their answer:  "I felt the mediator forced me to accept her solution."

This was clearly an unfortunate example. Standard One of the "Model Standards of Conduct for Mediators" is self-determination, which is defined as "the act of coming to a voluntary uncoerced decision in which each party makes free and informed choices as to process and outcome."

This standard is generally assumed to apply both to mediations in which the parties voluntarily elect to mediate and those in which a court has made mediation mandatory. In these cases, while a court may order participants to attend mediation, the court and the mediator may not mandate the extent of the parties' participation nor force or coerce a party to settle. Standard One makes it clear that mediators should inform the parties that participation is voluntary and that any party may withdraw from the process at any time.

Proponents of mediation, such as myself, strongly contend that the voluntary nature of mediation leads to better settlements than imposed decisions by third parties. It leads to greater satisfaction overall and the likelihood that the parties will follow through with the terms of their agreement. 

But realistically, mediators will also talk about the tools used to encourage parties to settle. I know I do. So the question becomes, "When does encourage become coerce?" 

For example, one tool mediators may use is "deadline pressure" to encourage the parties to reach an agreement. When a mediator says, "It's almost lunchtime. Let's see what we can do to wrap this up before lunch." Is that encouragement or coercion? Or when a mediator reminds the parties of the negative consequences of not reaching an agreement, is that encouragement or coercion?

Today there are those arguing that "times have changed" and that courts and corporations expect that mediators push for agreements and that mediators, such as I, who advocate for self-determination, are living in the era when mediation became popular in community mediation centers when self-determination was the defining characteristic of the process. Perhaps I am advocating "pure" self-determination. As one author has written, all mediations are voluntary, it's just that some are more voluntary than others.

In my opinion, mediators must explain the process he or she intends to use to the parties and that the parties must agree to that approach. Going back to Standard One, parties should be able to make free and informed choices as to PROCESS as well as OUTCOME. If a mediator intends to press for an agreement, I believe that approach should reveal that to the parties so that they have the opportunity to decline participation or request the use of another style of mediation or another mediator entirely.