Party autonomy and mediation

Party autonomy in mediation: why do Chinese parties appear to be reluctant to exercise "autonomy"? Contents Abstract p 2 1. Introduction p 3 2. Definitions: mediation and party autonomy p 4 3. Party autonomy – a three-dimensional matrix p6 3. 1 Informed choice and autonomy p 7 3. 2 Justice and autonomy p 8 3. 3 Mediator advice and autonomy p 9 3. 4 Proactive and reactive autonomy and autonomy quotients p 11 3. 5 Mediation contexts and autonomy p 14 4. Perceptions of mediation practice in mainland China p 16 5. Why do Chinese parties appear to be reluctant to exercise "autonomy"? p 20 6.

Cultural orientations and autonomy quotients p 21 7. Implications for mediator training, assessment and code of conduct p 25 Party autonomy in mediation: why do Chinese parties appear to be reluctant to exercise "autonomy"? Abstract This paper aims to examine the notion of party autonomy and what it entails in mediation in the Western context and discuss its relationship with Chinese political legacies and cultural orientations. Party here refers to the parties in a mediation. I will first define mediation in the Anglo-American tradition, particularly the elements in the mediation process that characterize party autonomy.

A distinction will be made between party autonomy in arbitration and party autonomy in mediation. Then, I will subject party autonomy to a nuanced analysis and consider two levels of party autonomy: proactive and reactive. I will illustrate how party autonomy can be conceptualized as a dynamic, three-dimensional matrix with different coalescing elements, including mediator approaches, parties' own autonomy quotients and different types of mediation context. Next, I will briefly describe the perceptions of contemporary mediation practice in mainland China and answer the question about Chinese parties' apparent reluctance to exercise autonomy.

I will apply hypotheses of cultural orientations to the exercise of party autonomy in mediation and argue that Chinese parties' autonomy quotients are emergent phenomena that could be interpreted in terms of these cultural hypotheses. Finally, I will argue that a culturally sensitive approach has implications for mediator training, assessment and code of conduct. 1. Introduction This essay is motivated by my experience in two domains outside of mediation where the notion of autonomy purportedly plays a key role in shaping and guiding professional practice.

In relaying my own experience, I hope to highlight two areas for discussion. The first is the notion of party autonomy and what it entails in mediation in the Western context, and the second is its relationship with Chinese political legacies and cultural orientations. The first experience involves manning a community hotline for people who are in considerable emotional distress and need to "be listened to", so to speak. We, the listeners, are expressly forbidden to "advise" callers on what they could do about their problems, even if they expressly ask for advice.

We are trained to ask questions in such a way that directs them to come up with their own "solutions". There are obviously legal, practical and ethical reasons why advice or suggestions should not be given in that context, but one of the reasons is that we should honour the autonomy of callers and their capacity for examining or solving their own problems. However, the "practice picture" that emerges from the listeners' description does not accord with the "theory picture", because invariably the callers beg for opinions and advice and listeners give advice, surreptitiously or overtly.

So we maintain this veneer of impartiality by saying that we do not advise or counsel our callers, rather like judges who deny that they ever make law, they simply follow the law. My other area of experience where autonomy is stressed is in higher education. Tertiary teachers are often encouraged and expected to develop students' autonomy, so that learners become increasingly responsible for their own learning. Teachers may, for example, direct learners to various learning resources and students may choose what resource to use, when, where and how to conduct the learning.

However, students may not respond well to autonomous learning and may even see it as an abdication of teacher responsibility. Suffice to say at this point that there is more to autonomy than meets the eye. At the heart of this ill-defined and ill-understood concept are the individuals' ability and willingness to make choices independently. This ability in turn depends on both knowledge and skills, while willingness hinges on motivation and confidence. 1 2. Definitions: mediation and party autonomy

Mediation, seen from an ordinary man's viewpoint, must be as old as human interaction and has been used for thousands of years by all kinds of societies, although its co-option by the legal profession is new. It is therefore not surprising that mediation may mean different things to different people, even within the same legal system, and is often used interchangeably with "conciliation". 2 The tremendous growth of mediation in North America, Britain and Australia in recent years has spurred the debate, rather than consensus, as to what the process is actually about.

3 For some, mediation is simply, assisted negotiation. The advantage of this broad definition is that it includes a variety of approaches to third party assistance. These approaches have been variously described as facilitative, evaluative, directive and transformative. 4 A facilitative mediation may, for example, be defined as a voluntary process (in both participation and outcome) in which an impartial, neutral party is invited or accepted by parties to a dispute to facilitate communication and negotiation; and help develop solutions which are acceptable to the parties.

5 The fundamental principle that characterizes facilitative medication is party autonomy. It is the parties who decide to participate in the process; it is also the parties who decide the outcome of their dispute. To avoid possible confusion, party autonomy in mediation needs to be distinguished from party autonomy in international arbitration.

In the latter, party autonomy often refers to the parties' right to choose 1) the substantive law that will govern the parties' contractual relationship, 2) the arbitration law that will govern the validity of the arbitration agreement, 3) the arbitration rules that will govern the arbitration proceedings and 4) the arbitrator(s), their power and the place, language and confidentiality of the arbitral proceedings. 6 Party autonomy in arbitration has its limits, because the arbitrator may be required to apply laws arising from a legal regime other than the one chosen by the parties.

In facilitative mediation, party autonomy refers to the parties' right to determine the outcome of their dispute and their right to voluntary participation in the process of negotiating the dispute. In other words, there is voluntariness and freedom to both process and outcome. Any agreement they reach is a product of their own free will, and they may withdraw from the process at any time. It is in this sense that they are said to "own" their dispute and are responsible for its resolution. 3. Party autonomy – a three-dimensional matrix

In the following sections I will first define party autonomy in terms of informed choice. I will then consider how mediator approaches interact with the parties' own autonomy quotients and different types of mediation context to produce negotiated versions of party autonomy. I will illustrate how party autonomy can be conceptualized as a dynamic, three-dimensional matrix with different coalescing elements. 3. 1 Informed choice and autonomy Party autonomy in mediation could entail many notions, including voluntariness, independence, self-determination, empowerment and freedom from external constraints.

David Matz, a seasoned American mediator, defines autonomy as the capacity to make a choice among real alternatives using reasons with which he or she is comfortable. 7 This capacity to make informed choices is often referred to in mediation literature. For example, in discussing the elements of procedural justice in mediation, Joseph Stulberg asserts that negotiating parties participate voluntarily only if they "possess the capacity to exercise meaningful choices regarding two or more possible courses of action.

"8 It is believed that a voluntary, self-determined resolution of a dispute will serve the parties' interest only if it is an informed choice. 3. 2 Justice and autonomy The American Bar Association's Model Standards of Conduct for Mediators state that "mediation is based on the fundamental principle of self-determination by the parties" (Art I). Further, "Mediator impartiality is central to the mediation process" (Art II). 9 It seems obvious that party autonomy does not exist in a vacuum and is inextricably tied to mediator impartiality.

It is said that impartiality means not having an interest in the outcome of the dispute. But surely a mediator, like every human being who aspires to be treated fairly and with dignity, has an interest in a just outcome. The question is how does the mediator's interest in a just outcome interact with the mediator's concern for the parties' autonomy? When a mediator tries intervening to prevent harassment, stop lying or provide information to "level the playing field", could such intervention be construed as violating party autonomy or should it be regarded as a "fair" use of mediator "power"?

10 What about failure to encourage a party to seek advice or inform a party knowing that he or she may be mistaken on a pertinent issue, does that jeopardize party autonomy? Here, I am not referring to an information asymmetry that may work to one party's benefit and the other's disadvantage, such as knowledge of the other party's bankruptcy or BATNA11 that might inform negotiation strategy and decision-making, because perfect information is not required for justice concerns.

12 Rather, I am thinking about issues such as gross dishonesty and fraud, where for example, a guardian negotiates on a minor's behalf with a view to a sizable settlement to cover his own gambling debt, rather than with a view to the minor's best interests. Jonathan Hyman points out that mediators' general reluctance to discuss fairness and justice has not purged these issues from our collective thinking, because they remain part of what mediators do. "Mediators rely on their intuitive moral sense to identify substantial unfairness.

When they see it, they may find some way to intervene, but they have no standard vocabulary or method to do so. "13 If mediation is to be built upon party autonomy, we may need to consider both substantive justice and procedural justice, where the challenges are not to be underestimated. 3. 3 Mediator advice and autonomy Mediator advice is another element in the process that concerns procedural justice and party autonomy. Leonard Riskin coined the terms "evaluative" and "facilitative" to describe the different approaches mediators might use.

14 The evaluative approach involves giving the parties opinions, ranging from opinions about the law governing an issue to opinions about how proposals will work in reality, and even advising parties on the best courses of action. He has since substituted the term "directive" to describe the ways a mediator can intervene. 15 Evaluatively directive mediators tend to be rights-focused and settlement-oriented and could gently encourage or assertively press parties to move toward their evaluations.

Harold Abramson asserts that many US and European mediators are known to be evaluatively directive, and obviously, the more directive the approach becomes, the greater the threat to party autonomy. 16 The other end of this continuum is the facilitative and transformative approaches. "Instead of promoting the goal of settlement for the parties, the transformative mediator allows the parties to determine their own direction and supports the parties' own opportunities for perspective-taking, deliberation and decision-making.

"17 At this end of the continuum, the mediator is said to be less settlement-oriented and would focus on the parties underlying interests and even aim to "empower" the parties through constructive and open interactions. One is tempted to wonder though whether empowerment is wishful thinking on the mediator's part, given that mediation, unlike therapy, is usually a one-off occurrence that does not last longer than a day or two. A facilitative or transformative approach suggests that advice is not and should not be given, but Tom Fisher maintains that all mediators give some advice, in whatever terms the advice is labelled.

Mediators advise parties using various techniques such as creating doubt, reframing and selective facilitation. 18 For example, in dealing with a party clinging to an entrenched position, whether the mediator chooses to cast doubt on that position by asking a question (e. g. , how would that help you reach an agreement? ) or chooses to ignore the position and instead focus on the parties' interests, i. e. , selectively facilitate, the effect is the same: the mediator is trying to advise the party to "get real".

In other words, the illocutionary force of these utterances or moves is the same, irrespective of whether the parties are aware of and understand the intention behind them. It is therefore argued that in the interest of procedural justice and party autonomy, both the motivation behind the "intervention" (process transparency) and its desired effect (impact transparency) should be explained. 19 3. 4 Proactive and reactive autonomy and autonomy quotients

In the previous sections, I discussed the impact of mediator approach (in particular advice and justice) on party autonomy and the challenges mediators confront while attempting to respect party autonomy and at the same time conduct an efficient process to achieve a realistic and equitable outcome. What about the parties themselves? They are not puppets on the mediator's string. What do they bring to bear on the process? It stands to reason that parties are usually resistant to making any move towards genuine communication, let alone dispute resolution.

If they were not, they would not be seeking the help of a mediator. It could therefore be argued that they come seeking "intervention". Their autonomy as a person may yield, resist, or push back, depending on their interaction with other players. Party autonomy, from this perspective, is a dynamic concept, sensitive to its overall relationship with the other parties and therefore is capable of varying degrees of expression. For many writers, party autonomy occupies a sacred space with a solid boundary. It implies an all-or-nothing, static notion of autonomy that does not yield to anything.

20 The legitimate concern of these writers is that power imbalance, either between parties or between parties and mediator, means that the line will be crossed and party autonomy violated. 21 For these writers, the only kind of autonomy that counts is what William Littlewood calls "proactive" autonomy in the context of language learning. He distinguishes two levels of autonomy: proactive and reactive. "The first regulates the direction of activity as well as the activity itself. The second regulates the activity once the direction has been set.

"22 The key words used in discussing proactive autonomy are action-words: parties take charge of their own dispute, determine their objectives, set their BATNA, choose their tactics and evaluate their options. In this way they establish a personal agenda for negotiating; they outline directions in a world which they themselves have actively authored. Willaim Littlewood argues that there is another level of autonomy: "reactive" autonomy, which does not create its own directions but, once a direction has been initiated, enables parties to organize their resources independently to reach their goal.

23 In this conception, party autonomy may entail no more than refining outlined proposals already on the table and choosing one of them. Parties with reactive autonomy orientations may not own their dispute in the sense that they determine their objectives, set their BATNA and choose their tactics. However, they will still be exercising their autonomy within the confines of the direction that has been set out for them. Party autonomy as a capacity for informed decision-making is, therefore, not an all-or-nothing concept, nor is it decision-making in the absence of any constraints.

As Daivd Matz aptly points out, we almost never make any decision without constraints of some kind. 24 Furthermore, autonomy exists in relation to not just an individual's capacity for informed decision-making, which presupposes both knowledge and skills, but also his/her willingness to do so, which depends on motivation and confidence. These factors combine to form what I would call a person's "autonomy quotients". I further argue that party autonomy exists in a complex, three-dimensional matrix that includes not just the mediator's approach and the parties' autonomy quotients, but also the mediation context.