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So, What Do You Think I Should Do?

March 20, 2017  | 

{3:24 minutes to read} One question that I’m asked by clients fairly often is, “Do you think I should accept this?” Or “Is it good for me to do x, y or z?” I understand why a client would ask. But, like the question, “Do you think that this is fair?” it’s not one that a mediator can answer (Fair is in the Eye of the Beholder].

It certainly seems expedient, especially if the couple just wants it all to be over. The mediator understands the facts and the law and is certainly capable of answering the question. So, why not?

Impartiality

If a mediator were to tell one party what she thinks that person should do, one of the parties likely would question whether or not the mediator was acting in a way that showed partiality to the other, especially if the determination was in the other’s favor. One of the basic tenets of mediation is that both parties have to feel that the mediator is not taking either person’s side. That is awfully hard to achieve if giving your opinion as to an outcome.

Now that is very different from helping a client evaluate an option. That process is necessary for clients to make a good decision. However, the decision part is one with which a mediator cannot help.

Which leads to another fundamental principle of mediation...

Self-Determination

Mediation relies upon parties making their own decisions after evaluating the possible outcomes. The mediator should help them make informed and voluntary decisions by:

  • Helping them understand their own and the other’s needs and interests;
  • Letting them know the professionals from whom they can obtain information and advice to help them make decisions;
  • Reminding them that mediation is a voluntary process and they do not have to reach a decision in mediation;
  • Staying away from influencing the parties one way or another to settle.

It’s also important that the mediator is not so focused on a settlement that she loses sight of the value of the process itself. The reaching of an outcome is on the parties, and not on the mediator. If the mediator tells a party what she thinks that person should do to resolve a dispute, that puts the outcome above the process.

So, I tell clients up front that if they ask me a question like that, they will not get an answer. And if they still ask the question, I remind them why I will not answer. Usually when I do, I see the look of understanding in their eyes, because they chose this process for that very reason: They didn’t want others to make decisions for them.

Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

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