Mediators are often pulled in many directions—they want to help their clients reach a speedy agreement, ensure the agreement is fair, and avoid coercion so they can honor mediation’s primary value of party self-determination. Can we have it all? In this groundbreaking resource, Dan Simon and Tara West illustrate how self-determination can mean much more than the absence of coercion—it can mean the opportunity for participants to increase their sense of agency as they gain clarity and confidence to make their own decisions, including those that express their highest values. Offering psychological research, philosophical principles, and real-life mediation stories, the authors examine where self-determination belongs in relation to other values, such as fairness, protection, and efficiency, as they wrestle with how to apply their principles in particularly challenging divorces, workplace conflicts, and more. Readers will be challenged to think deeply about how their values and assumptions guide their practice, and they will be inspired to more fully embrace their commitment to self-determination.

Omer Shapira proposes and justifies a theory of mediators' ethics which guides mediators' conduct and applies to mediators at large.

Traditional ideas of mediator neutrality and impartiality have come under increasing attack in recent decades. There is, however, a lack of consensus on what should replace them. Mediation Ethics offers a response to this question, developing a new theory of mediation that emphasises its nature as a relational process.

In the context of mediation, party self-determination refers to the ability of disputants to have power, control, and autonomy in the process. There are numerous process design questions involved in running a mediation, no matter its subject matter. Consider just one example: “Should the mediation be conducted in-person, or virtually?” The answer to this question can have a profound impact on the direction and course of a mediation, including its outcome. Yet, in the context of court-connected mediation, disputing parties are not consistently provided the opportunity to give input on how such process design questions are resolved. In fact, these decisions are typically made by mediators, courts, program administrators, counsel, or others--all of which conflicts with the MODEL STANDARDS OF CONDUCT FOR MEDIATORS' declaration that disputing parties may exercise self-determination at any stage of a mediation, including process design. In effect, this dynamic represents a significant failure regarding one of mediation's core promises. The paper proposes a novel solution to this unfulfilled promise: the institution of an Opening Negotiation Session at the start of every court-connected mediation. This joint meeting would involve all participants (mediators, disputants, and counsel) to ensure party interests are accounted for in deciding how four specific process design questions, all explored in the paper, will guide the mediation. This opening negotiation can immediately impact how the mediation will be run as it moves forward, thereby dramatically enhancing party self-determination and leading to a more tailored, empowering, and accountable resolution process for all participants.

Few concepts have generated as much discussion in the post-war international legal system as that of quot;self-determination.quot; Scholars debate the proper identity of the quot;selvesquot; endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors.The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of self-determination allows parties to participate in decisionmaking and voluntarily decide the outcome of their disputes. This understanding of self-determination is rooted in the philosophical principle of personal autonomy and is expressed through the legal doctrine of informed consent. The simple version of the normative story states that those who are affected by a dispute should voluntarily consent to the outcome of that dispute. In short, quot;partyquot; self-determination in mediation gives ownership of the conflict to the disputants.The self-determination story becomes more complex under international law. In theory, as a substantive legal principle, self-determination is the foundational value of the sovereign state, broadly understood as a democratic principle that requires the consent of the governed. International law limits the legal privilege of self-determination to nations and peoples, referring to quot;nationalquot; rather than quot;partyquot; or group self-determination. In contrast to its honored status in private mediation, little attention is paid to the procedural aspects of self-determination in public mediation. This article focuses on how we account for this missing process value in public mediation discourse, and why the discourse matters.

To be a mediator requires that one becomes a social scientist within very sensitive and dynamic environments all the while being impartial and while guiding parties to reach a mutually satisfactory solution through a process of self-determination. The legislative framework and quasi-judicial nature of mediation however seeks to down play the role of communication and emotion and their interplay within various aspects of this ADR mechanism with mediators generally being charged to diffuse the “anger” when it arises and achieve a settlement. Very little attention is given to the melting pot of emotions and communication within mediation process and practice. This paper therefore considers the role of Mediators within the Mediation process in Kenya and attempts to shed light on how to integrate best practices regarding communication and emotion within Mediation practice in Kenya whether private or within the Court Mandated Mediation Program.