Article Summary of "Mediator Pressure and Party Autonomy: Are They Consistent With Each Other?" by David E. Matz

In his experience as a mediator, Matz has observed that parties tend to be very resistant to movement. It is this inability to move which brings them to mediation. Yet the mediation literature stresses the extent to which parties may be influenced, directed and even coerced by mediators. Mediation theory emphasizes respect for party autonomy and the need to reach voluntary agreements.

Matz sees a possible conflict here. On the one hand parties come to mediation because they are stuck, hoping that the mediator's intervention will get them moving again. On the other hand, mediators are very wary of applying pressure to parties, lest they compromise the parties' autonomy. Matz seeks to explain how the use of mediator pressure may be consistent with respecting party autonomy.

Autonomy

In discussing autonomy, Matz follows the standard definition: "autonomy exists when an individual has the capacity to make a choice among real alternatives, and can make the choice for reasons with which he or she is comfortable."[361] Autonomy does not require the complete absence of constraints on decision-making; if so, no one would be autonomous.

Mediator pressure may be a source of constraint on the parties' decision-making. Mediator pressure comes in many forms and degrees. Matz works with the example of redirecting a party's focus in a discussion by asking that party to explore a particular point further.

In practice, Matz sees mediators using pressure to enhance parties' decision-making abilities. Matz describes this as the paradox of mediation. "For a mediator to encourage the free expression of a party's will, the mediator may (and in some circumstances must) apply pressure, impose constraints, and limit voluntariness."[362]

In order to distinguish between pressure which enhances autonomy, and pressure which diminishes it, Matz recommends using a somewhat different image of autonomy. Much mediation literature describes an individual's autonomy in static spatial metaphors, as an area within the individual. Intruding into that space violates the individual's autonomy.

Matz suggests that we instead take a relational, dynamic view of autonomy. Individuals have and express their own sense of their autonomy in their interactions with others. From this viewpoint, the mediator can judge whether her pressure has infringed on the party's autonomy by gauging the party's reaction to that pressure. Does the party express discontent, resistance, or offense? Do they accede to the pressure willingly? Do they ask further questions? Is the interaction with the mediator tense or relaxed?

Mediation Practice

One way to balance mediator pressure and party autonomy is to give the parties time and space to respond to mediator pressure. Having applied pressure, the mediator might then ask the parties if they would like to take a brief break, or consult with another party. Another way to safeguard party autonomy is to take a substantial break between reaching and finalizing an agreement. The break is a final opportunity for the parties to reflect on the process, and to assess their degree of comfort with the process and settlement.

In determining how much pressure is too much, the mediator must be sensitive to fairly subtle clues from the parties. Each party is different, so there can be no clear rules about when pressure is appropriate. Mediator training in this area would be improved by the use of videotaped case studies, which capture more of the fine points of parties' responses.

Matz summarizes his position: "I believe that parties come to mediators to reach an agreement they cannot reach themselves; that one approach we have is to apply pressure to the parties to help them move toward settlement; that we respect parties most clearly when we assume that they expect such pressure, and are capable of accepting it as part of the work; that we must be alert to the possibility of applying too much pressure; and that we must make room for parties to repulse our pressure to be sure they do not find it to be too much."[364]