Robert Baruch Bush’s recent article in the Harvard Negotiation Law Review tackles something most mediators have noticed: we all agree that party self-determination is fundamental to mediation, yet we practice it very differently.
The Gap Between Theory and Practice
Bush identifies two distinct approaches:
In facilitative mediation, self-determination matters, but it can be set aside when needed. We control the process stages, set ground rules, limit emotional expression, reframe comments, and use caucuses to generate movement. The unspoken logic? Sometimes parties need guidance to reach a good outcome. “The parties control the outcome, but I control the process.”
In transformative mediation, self-determination is non-negotiable. Parties decide whether to have ground rules, when to speak, what topics to address, and how much emotion to express. The mediator follows rather than leads.
Why the Difference?
Here’s where it gets interesting. Bush argues these aren’t just different techniques. They reflect fundamentally different beliefs about what mediation is for.
If you believe mediation’s purpose is reaching agreement and satisfying parties’ needs, then self-determination is a useful tool. When it gets in the way of a good outcome, it makes sense to step in.
If you believe mediation’s purpose is helping parties change how they interact (shifting from weakness to strength, from hostility to understanding) then self-determination isn’t just useful, it’s essential. It’s the very thing that rebuilds people’s sense of their own competence.
Neither Is Wrong
Bush isn’t saying facilitative mediators are doing it wrong. He’s saying both approaches are internally consistent. They just start from different premises about what we’re trying to achieve.
The Practical Question
This matters because it affects everything: how we train mediators, what ethical standards mean, and how we evaluate our own practice.
Worth asking yourself:
- When I intervene to move things along, what value am I serving?
- And is that the value I want at the centre of my practice?
Based on “Self-Determination, Needs Satisfaction and Moral Growth” by Robert A. Baruch Bush, (2024-5) 30 Harvard Negotiation Law Review 113-138. Read the full article here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4933796