UNSETTLING THE SELF: RETHINKING SELF-DETERMINATION IN MEDIATION

Abstract

Self-determination is a fundamental ethical principle of mediation (the first listed in the Model Standards of Conduct for Mediators), but scholars and practitioners disagree about what it requires. This article argues that traditional ideas of self-determination, which focus on protecting the mediation parties’ abilities to make uncoerced decisions, are inadequate because they fail to account for how parties come to define their goals and how they engage with the mediation process. Instead, the article draws upon Michel Foucault’s concept of the “technologies of the self” to propose a new understanding of self-determination that emphasizes how parties engage in work upon themselves within the mediation process. This article is the first to apply Foucault’s late work on the self to mediation, and the approach offers several key insights for mediation practice. By rethinking self-determination in this way, the article recognizes that the “self” of a mediation party is not necessarily fixed and stable, but rather may be fluid and socially influenced. This approach to self-determination invites critical analysis of parties’ interests and goals, rather than taking them as givens, highlighting the ethical stakes of mediation. This approach also avoids unproductive debates about whether mediators exercise power in mediation to explain precisely how mediators can do so in ways that support the parties. The lessons of this article can resolve important debates over what the ethical principle of party self-determination requires of mediators.

Keywords: Mediation, Dispute Resolution