Party autonomy and mediation

3.        Party autonomy – a three-dimensional matrix

In the following sections I will first define party autonomy in terms of informed choice.  I will then consider how mediator approaches interact with the parties’ own autonomy quotients and different types of mediation context to produce negotiated versions of party autonomy.  I will illustrate how party autonomy can be conceptualized as a dynamic, three-dimensional matrix with different coalescing elements.

3.1        Informed choice and autonomy

Party autonomy in mediation could entail many notions, including voluntariness, independence, self-determination, empowerment and freedom from external constraints.  David Matz, a seasoned American mediator, defines autonomy as the capacity to make a choice among real alternatives using reasons with which he or she is comfortable.  This capacity to make informed choices is often referred to in mediation literature.  For example, in discussing the elements of procedural justice in mediation, Joseph Stulberg asserts that negotiating parties participate voluntarily only if they “possess the capacity to exercise meaningful choices regarding two or more possible courses of action.”  It is believed that a voluntary, self-determined resolution of a dispute will serve the parties’ interest only if it is an informed choice.

3.2        Justice and autonomy

The American Bar Association’s Model Standards of Conduct for Mediators state that “mediation is based on the fundamental principle of self-determination by the parties” (Art I).  Further, “Mediator impartiality is central to the mediation process” (Art II).  It seems obvious that party autonomy does not exist in a vacuum and is inextricably tied to mediator impartiality.  It is said that impartiality means not having an interest in the outcome of the dispute.  But surely a mediator, like every human being who aspires to be treated fairly and with dignity, has an interest in a just outcome.  The question is how does the mediator’s interest in a just outcome interact with the mediator’s concern for the parties’ autonomy?  When a mediator tries intervening to prevent harassment, stop lying or provide information to “level the playing field”, could such intervention be construed as violating party autonomy or should it be regarded as a “fair” use of mediator “power”?  What about failure to encourage a party to seek advice or inform a party knowing that he or she may be mistaken on a pertinent issue, does that jeopardize party autonomy?  Here, I am not referring to an information asymmetry that may work to one party’s benefit and the other’s disadvantage, such as knowledge of the other party’s bankruptcy or BATNA that might inform negotiation strategy and decision-making, because perfect information is not required for justice concerns.  Rather, I am thinking about issues such as gross dishonesty and fraud, where for example, a guardian negotiates on a minor’s behalf with a view to a sizable settlement to cover his own gambling debt, rather than with a view to the minor’s best interests.

Jonathan Hyman points out that mediators’ general reluctance to discuss fairness and justice has not purged these issues from our collective thinking, because they remain part of what mediators do.  “Mediators rely on their intuitive moral sense to identify substantial unfairness.  When they see it, they may find some way to intervene, but they have no standard vocabulary or method to do so.”  If mediation is to be built upon party autonomy, we may need to consider both substantive justice and procedural justice, where the challenges are not to be underestimated.

3.3        Mediator advice and autonomy

Mediator advice is another element in the process that concerns procedural justice and party autonomy.  Leonard Riskin coined the terms “evaluative” and “facilitative” to describe the different approaches mediators might use.  The evaluative approach involves giving the parties opinions, ranging from opinions about the law governing an issue to opinions about how proposals will work in reality, and even advising parties on the best courses of action.  He has since substituted the term “directive” to describe the ways a mediator can intervene.  Evaluatively directive mediators tend to be rights-focused and settlement-oriented and could gently encourage or assertively press parties to move toward their evaluations.  Harold Abramson asserts that many US and European mediators are known to be evaluatively directive, and obviously, the more directive the approach becomes, the greater the threat to party autonomy.  The other end of this continuum is the facilitative and transformative approaches.  “Instead of promoting the goal of settlement for the parties, the transformative mediator allows the parties to determine their own direction and supports the parties’ own opportunities for perspective-taking, deliberation and decision-making.”  At this end of the continuum, the mediator is said to be less settlement-oriented and would focus on the parties underlying interests and even aim to “empower” the parties through constructive and open interactions.  One is tempted to wonder though whether empowerment is wishful thinking on the mediator’s part, given that mediation, unlike therapy, is usually a one-off occurrence that does not last longer than a day or two.

A facilitative or transformative approach suggests that advice is not and should not be given, but Tom Fisher maintains that all mediators give some advice, in whatever terms the advice is labelled.  Mediators advise parties using various techniques such as creating doubt, reframing and selective facilitation.  For example, in dealing with a party clinging to an entrenched position, whether the mediator chooses to cast doubt on that position by asking a question (e.g., how would that help you reach an agreement?) or chooses to ignore the position and instead focus on the parties’ interests, i.e., selectively facilitate, the effect is the same: the mediator is trying to advise the party to “get real”.  In other words, the illocutionary force of these utterances or moves is the same, irrespective of whether the parties are aware of and understand the intention behind them.  It is therefore argued that in the interest of procedural justice and party autonomy, both the motivation behind the “intervention” (process transparency) and its desired effect (impact transparency) should be explained.

3.4        Proactive and reactive autonomy and autonomy quotients

In the previous sections, I discussed the impact of mediator approach (in particular advice and justice) on party autonomy and the challenges mediators confront while attempting to respect party autonomy and at the same time conduct an efficient process to achieve a realistic and equitable outcome.  What about the parties themselves?  They are not puppets on the mediator’s string.  What do they bring to bear on the process?  It stands to reason that parties are usually resistant to making any move towards genuine communication, let alone dispute resolution.  If they were not, they would not be seeking the help of a mediator.  It could therefore be argued that they come seeking “intervention”.  Their autonomy as a person may yield, resist, or push back, depending on their interaction with other players.  Party autonomy, from this perspective, is a dynamic concept, sensitive to its overall relationship with the other parties and therefore is capable of varying degrees of expression.

For many writers, party autonomy occupies a sacred space with a solid boundary.  It implies an all-or-nothing, static notion of autonomy that does not yield to anything.  The legitimate concern of these writers is that power imbalance, either between parties or between parties and mediator, means that the line will be crossed and party autonomy violated.  For these writers, the only kind of autonomy that counts is what William Littlewood calls “proactive” autonomy in the context of language learning.  He distinguishes two levels of autonomy: proactive and reactive.  “The first regulates the direction of activity as well as the activity itself.  The second regulates the activity once the direction has been set.”  The key words used in discussing proactive autonomy are action-words: parties take charge of their own dispute, determine their objectives, set their BATNA, choose their tactics and evaluate their options.  In this way they establish a personal agenda for negotiating; they outline directions in a world which they themselves have actively authored.

Willaim Littlewood argues that there is another level of autonomy: “reactive” autonomy, which does not create its own directions but, once a direction has been initiated, enables parties to organize their resources independently to reach their goal.  In this conception, party autonomy may entail no more than refining outlined proposals already on the table and choosing one of them.  Parties with reactive autonomy orientations may not own their dispute in the sense that they determine their objectives, set their BATNA and choose their tactics.  However, they will still be exercising their autonomy within the confines of the direction that has been set out for them.

Party autonomy as a capacity for informed decision-making is, therefore, not an all-or-nothing concept, nor is it decision-making in the absence of any constraints.  As Daivd Matz aptly points out, we almost never make any decision without constraints of some kind.  Furthermore, autonomy exists in relation to not just an individual’s capacity for informed decision-making, which presupposes both knowledge and skills, but also his/her willingness to do so, which depends on motivation and confidence.  These factors combine to form what I would call a person’s “autonomy quotients”.  I further argue that party autonomy exists in a complex, three-dimensional matrix that includes not just the mediator’s approach and the parties’ autonomy quotients, but also the mediation context.

3.5        Mediation contexts and autonomy

Another factor that exerts a powerful influence on how negotiated versions of autonomy can be enabled is mediation contexts.  Ilan Gewurz contends that a specific approach to mediation may be appropriate for a given situation, depending on the existing power dynamics between the parties.  I would further argue that power dynamics between the disputing parties will impact on their willingness to exercise autonomy and the level of autonomy they might employ.  Important questions about power dynamics concern past relationship and whether there is likely to be a future relationship.  The following examples, adapted from Ilan Gewurz, illustrate how contexts interact with autonomy quotients:

• repeat players in a business context;
• divorcing couple in a family context;
• landlord and tenant dispute context;
• strangers in an accident dispute context.

In the business context, both the supplier and manufacturer have an interest in maintaining a future relationship for different reasons (sizeable portion of the entire business for the manufacturer and trustworthy partner for the supplier).  In this situation, party autonomy is likely to be exercised to the full, at the proactive level, because the existing power imbalance is not substantial and there was not a past exploitative relationship.  A facilitative approach may be the most appropriate here.

In the family scenario with children and a domineering party, autonomy may already be in jeopardy in the weaker party because past experience has damaged his/her motivation and confidence in exercising proactive autonomy, even though both have an interest in an ongoing relationship through custody arrangement.  Under the circumstances, an evaluatively directive approach that brings to bear the authority of the law may be appropriate, so that reactive autonomy may be exercised with little detriment to the weaker party.

In the landlord-tenant dispute, the parties are to end their relationship because the tenant is moving out and the dispute is about the length of prior notice that should be given by the tenant.  However, there is a history of acrimonious relationship, and both parties are likely to be proactively autonomous in directing their own agendas.  An evaluatively directive approach may be necessary here to push the parties beyond acrimony.

In the accident scenario, the parties are strangers involved in a car crash, and there is neither a shared history nor a future relationship.  The level of autonomy they employ will depend largely on the mediation process, and an evaluative approach that is settlement-oriented may help both parties realize their best interests.

The above examples show that party autonomy, similar to power dynamics, is fluid and always relational.  It exists in juxtaposition with the mediation context and mediator approach, which could also be very dynamic, because a skilled mediator could employ different approaches in various phases of the mediation process.  This complex interplay of factors enters into an intricate dance with the cultural values we bring to the mediation process.

4.        Perceptions of mediation practice in mainland China

In the following sections, I will draw on the perceptions of contemporary mediation practice in mainland China and examine a few hypotheses about Chinese cultural orientations.  On the basis of these hypotheses, I will postulate a number of generalisations about the autonomy quotients of Chinese parties in mediation.

Tiaojie, translated as mediation, in mainland China is very different from what is called mediation in the English literature.  In fact, Donald Clarke thinks it seriously misleading to use the word without further explanation.  There are currently four kinds of mediation practices in mainland China:

• extrajudicial or “people’s” mediation by People’s Mediation Committees (PMCs) outside the court;
• administrative mediation by judicial assistants in local government outside the court;
• judicial mediation by a court of law; and
• mediation-arbitration, i.e., mediation by arbitration bodies.

These four kinds of mediation practice are all state “sponsored” in that they bear some relationship to the Party-state.  They overlap in their practices and jurisdictions, e.g., judicial assistants supervise PMCs, but they also mediate PMC cases and function like judges, issuing summons or coercively enforcing settlements.  The procedures used by courts and PMCs are also similar.  Given the Chinese historical perspective and the Maoist baggage, the blurring of the lines between adjudication and mediation is inevitable.  The PRC’s Civil Procedure Law and the Arbitration Law specifically endorse a “dual role” for judges and arbitrators as mediator on the one hand, and as adjudicator on the other.

The PMCs were probably the largest dispute resolution body in China in the 1980s with an average of 7 million cases a year; it was estimated that for every civil dispute that went to court, about five to ten were resolved by PMCs.  However, for the first time in 1996, the number of cases fell to below 6 million, while the number brought to the courts had increased.  There are a number of reasons for this decline, and one of them is an image problem: a 1990 survey in Beijing shows that many PMC mediators are aged, illiterate or semi-literate housewives who are, in the words of a Hong Kong solicitor, “a bunch of busybodies with nothing better to do”.  The PMCs’ decline would undermine the state’s agenda in mediation as the first battle line of social defense, i.e., a form of social control that “nips disputes in the bud”.

Without going into the details of the four kinds of practices that are called mediation, it is probably fair to state that both extrajudicial and judicial mediation are perceived as adjudicative in nature.  Some of it might even be described as coercive, bordering on harassment, and has therefore come under severe criticism.  The kind of popular justice served under the PMCs has been criticized as feudal, tyrannical, fascist and manipulative.  Similarly, judicial mediation, especially in marital cases, has been condemned as coercive, unprincipled and illegal and a barrier to China’s progress towards the Rule of Law.  Perhaps an element of coercion has come to be seen as inevitable by mediators and society at large, because the court system is woefully inadequate.  There is no genuine alternative to mediation, because litigation is too expensive and Chinese courts simply will not accept minor cases for adjudication and yet there are no small claims courts.  This critical picture of mediation contrasts sharply with the romantic Confucian ideal promoted by scholars such as Albert Chen, who likens the Western transformative theory of mediation to the Confucian theory of mediation.  However, the perception is that contemporary Chinese mediation practice seems to owe more to Communist ideology, experience, and practice than it does to Confucian tradition.

5.        Why do Chinese parties appear to be reluctant to exercise “autonomy”?

According to Stanley Lubman, the populists in Chinese legal circles seek autonomy for mediation and would like to steer mediation away from the legal and Party-state system.  However, legalists are inclined to insist that mediation be more closely aligned with law.  The legalists’ position is understandable, given the political legacy (lawlessness, manipulation and social control) and heavy-handed nature of mediation in China.  Given this background, Western-style facilitative mediation that encourages the parties to problem solve creatively may sit rather uncomfortably with Chinese parties who expect to be directed towards a just and fair resolution by the mediator.  For mediators trained in facilitative negotiation, the mediation process belongs to the parties who “own” their conflict and its resolution; it is the parties who will determine the answers to their problems.  However, in China, parties expect the mediator to recommend solutions.  As one Chinese participant to a Western-style facilitative mediation course remarked, “They’ll never get Chinese parties to really do this.  You can’t talk to Chinese parties and ask them to make the decision.  They want to be told how the case should come out.  That’s what the neutral is for!”  This sentiment reflects the perception of mediation in China as predominantly adjudicative in nature; mediation is supposed to clarify right and wrong and this is why mediators are increasingly expected to have some legal training and knowledge about policy issues.

The political-legal culture that informs Chinese parties’ past experiences partly explains the reluctance of Chinese parties to call upon their capacity for informed decision-making.  However, this apparent reluctance could be expressed as their unwillingness to exercise proactive autonomy, rather than to exercise autonomy per se.  In other words, if the mediator were to suggest a few options out of their impasse, they would actively weigh them or even refine them for their purpose.  At this level, Chinese parties could be said to exercise reactive autonomy.

6.        Cultural orientations and autonomy quotients

Next, we will take a brief look at the broader cultural foundation that shape Chinese parties’ autonomy quotients.  Studies of intercultural differences lead us to predict that, when seen as groups, Chinese parties and Western parties will have different attitudes towards some aspects of autonomy.  I will however begin with the assumption that at the individual level, there are no intrinsic differences that make Chinese parties either less, or more, capable of developing whatever levels of autonomy in mediation.  In other words, their autonomy quotients, though stable, are not fixed at a predetermined level.  The pertinent factors which underlie whatever differences are cultural orientations, past experiences, mediator approach and the contexts in which mediation takes place.

Geert Hofstede has been influential in explaining similarities and differences across cultures using cultural orientations.  These are sources of influence which are often claimed to have an important effect on attitudes and behavior.  I will briefly outline three such sources of influences on Chinese parties’ expression of autonomy in mediation:

• Collectivism-individualism
• Power distance
• Locus of control

William Littlewood’s analysis of the literature on intercultural differences reveals that cultures are distinguished along one end or the other of a continuum extending from individualism to collectivism.  An individualist orientation encourages individuals to claim the right to express themselves and make personal choices, i.e., to orient towards the “I”.  A collectivist orientation encourages individuals to express themselves as a group and make group choices, i.e., to orient towards the “We”.

A second dimension is the power distance orientation.  This refers to our attitudes to power and authority.  Some cultures tend to have low power distance, meaning members of society prefer to have fewer differences in power and authority, whereas societies with high power distance will have greater differences.  People in the latter tend to see power differences as unavoidable facts of life, while people in the former try to reduce power differences as much as possible.

A third orientation, locus of control, measured from internal to external, refers to the extent to which individuals believe they control their fate.  Those with external locus of control tend to believe in destiny and acceptance of what life has installed, while those with internal locus of control tend to believe that they control their own destinies and most things can be changed.

Hofstede’s work and that of others have found that most cultures which rate high in collectivism also rate high in power distance, and they orient towards external locus of control.  China and many East Asian countries are examples.  How might these dominant cultural orientations reflected in mediation processes and expressions of autonomy?  Here, I will offer a number of hypotheses.  First, party self-determination and control of outcome may be difficult for Chinese parties who are group oriented.  They may feel the burden (real or imagined) of being responsible for more than just themselves, e.g., how would their families and friends feel about the outcome of the dispute?  The weight of these considerations is multiplied when parties are negotiating on behalf of a company of group and may prefer to come to the negotiation table and speak and make decisions as a group.  They may prefer to exhibit autonomy, proactive or reactive, as a group rather than as an individual.  Second, Chinese parties who have strong external locus of control may find proactive autonomy troubling.  They may have come to mediation believing that life is what happens to them, and that they neither control nor are responsible for the outcome of the dispute.  Therefore, they expect to receive solutions and are receptive to, if not eager to, adopting them.  They may only be comfortable with exercising reactive autonomy.  Third, the high power distance in Chinese society predicts respect or even deference to the mediator, who is likely to be perceived as a wise counsel having all the answers and solutions.  If the mediator does not provide advice and answers, he or she runs the risk of losing both respect and legitimacy.

Autonomy quotients are therefore best understood as emergent phenomena which link and interact in complex ways with cultural orientations and past experiences.  A Western-style facilitative mediation process that privileges the individual with a strong internal locus of control (e.g., expecting the individual to retain control of the mediation process and the outcome of the dispute) and emphasizes low power distance (e.g., use of first names and a casual, relaxed atmosphere) could appear quite odd from a Chinese perspective, as well as from a Western perspective that favours directive mediation.  It is precisely because the parties are unwilling or unable to retain control that they go to a mediator for help.  Similarly, a Western party, faced with a team of Chinese negotiators who will not be presented by one person with settlement authority, may suspect that the Chinese side is acting in bad faith, when in fact the Chinese team may be displaying a preference for collective responsibility and collective autonomy.

7.        Implications for mediator training, assessment and code of conduct

I have examined the notion of party autonomy from various angles and concluded that it is a dynamic concept which finds expression as autonomy quotients at varying levels.  I have illustrated how it can be conceptualized as a three-dimensional matrix with different coalescing elements of which cultural orientations is just one.  I started this paper with my own experiences of seeing autonomy in operation in both private and public settings and would like to finish by stressing the importance of infusing our professional practice with insights from the clients’ perspective.  This is something that is sorely lacking in mediation, in part due to its private and confidential nature.  I would argue that our understanding of mediation practice in legally distinct jurisdictions, imparted with a nuanced conception of party autonomy and a sensitivity to cultural orientation hypotheses, is not only relevant, but crucial to how we train, assess and develop mediators.  For instance, should mediators in China be trained and assessed only in the facilitative approach?  Putting it more provocatively, do we want mediators to run the risk of losing both respect and legitimacy because they have been trained not to provide advice and answers?  Or should they be trained and assessed in various approaches that could be adapted judiciously depending on who the parties are and what the contexts are?  How do we train mediators so that negotiated versions of autonomy can best be enabled in all contexts?  Should mediators do pupilage and be attached to different mediators, so that they are exposed to a variety of mediation approaches and contexts?  Mediators, like parties, come with their own cultural orientations, autonomy quotients and preferences for different mediation approaches.  Should they be assessed with the same yardstick or should the assessment regime be sensitive enough to identify individual strengths and weaknesses?  In terms of a code of conduct, should local mediation characteristics and processes be integrated with more international practices to develop culturally appropriate guidelines and models?  For example, should evaluatively directive mediators always check with parties to see if they are comfortable with the approach, pressure or questions, especially during private caucus?  Should mediators give parties with low autonomy quotients the time and opportunity to reflect on the settlement agreement and perhaps discuss it with someone before they sign it?  What about insights from the parties themselves and their actual experience in mediation?  Should we incorporate client feedback in the process to better assess the efficacy of mediation processes?  How would party feedback help us better understand and foster their emergent autonomy?  Finally, privatization of justice and accountability of mediators impact on party autonomy.  Should the processes be open to a certain degree of professional scrutiny?  If yes, how?  Should entire proceedings and settlements be recorded with identities protected?  What ethical issues are at stake in such endeavours?  These questions and many others await further research.

References

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