By Robert Angyal SC
Party self-determination is a central concept in mediation theory, yet many basic questions about it remain unaddressed. Does it describe only how mediating parties, acting together, resolve their dispute or does it also describe how they act towards each other? If the former, the name of the concept is confusing and the concept itself adds little to the existing distinction between a dispute resolved by agreement of the parties and one where a result is imposed on the parties by an adjudicative decision-maker. If party self-determination describes how mediating parties act towards each other, it loses all content. The cause of the loss of content is misplaced concern that mediated agreements may be substantively unfair as a result of power imbalances between the parties. The concern is misplaced because a mediator cannot know whether a mediated agreement is substantively unfair and, for practical and legal reasons, cannot even up power imbalances. Next, does party self-determination purport to prescribe how mediation should be conducted or does it merely describe its conduct? If the former, there does not appear to be any authority for its prescriptions. If the latter, its description of mediation diverges widely from conventional Australian practice. Finally, party self-determination fails to explain the two central mechanisms that make mediation such an effective method of dispute resolution: The power of doubt and the terrible choice that mediating parties are forced to make during the “end game” of mediation. Given these deficiencies, the concept of party self-determination should be abandoned as lacking utility.
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