Why Does Anyone Mediate If Mediation Risks Psychological Dissatisfaction, Extra Costs and Manipulation? Three Theories Reveal Paradoxes Resolved by Mediator Standards of Ethical Practice
29 Ohio State Journal on Dispute Resolution (2014), Forthcoming
25 Pages Posted: 5 May 2014
Date Written: May 4, 2014
Three paradoxes afflict mediation. First, if self-determination is a psychological need motivating the parties and the mediator, how can the parties and the mediator jointly satisfy their potentially conflicting needs? Second, if parties are having difficulty resolving their conflicting individual interests and incurring costs in the process, why would they invite a third party into the conflict who has his or her own interests and adds costs? Third, if it is impossible to guarantee that any collaborative decision making process can be immune to manipulation by one of the participants, including the mediator, why would parties expose themselves to the risks of mediation? Three mutually reinforcing theories (Self-Determination Theory, Transaction Resource Theory, and Collective Choice Theory) reveal these paradoxes. The analysis demonstrates how professional organizations and states can resolve the three paradoxes by crafting and enforcing mandatory standards of ethical practice for mediators.
Keywords: mediation, ethical code of conduct, self-determination theory, transaction resource theory, Arrow Paradox, rhetoric, behavioral economics, heresthetics
JEL Classification: C71, D71, D74, J52, J58
Suggested Citation: Suggested Citation