“Party self-determination” is widely regarded as a core concept in the theory of mediation. It has been described by leading mediation academics as “the fundamental principle of mediation”, as “the major and most fundamental value proposition behind the mediation process” and as the “ultimate value” of mediation. A recent book, “The Need for a New Paradigm of Mediation Ethics” (Field and Crowe, Elgar 2020), argues that the traditional focus on mediator neutrality and impartiality should be replaced by a new ethical framework for mediation “centred on party self-determination”.

It sounded like party self-determination was the right stuff and that you couldn’t have too much of it. But as I began to explore it, I found to my astonishment that basic questions about it remained unanswered. For example, did it only describe how parties in dispute, acting together, resolved their dispute? Or did it also describe how they related to each other while doing so? Some writers thought it was always generated by parties in dispute agreeing on a resolution of their dispute … but others feared that, despite the parties agreeing, their agreement might not be substantively fair, with the result that the party to whom the agreement was not fair would not achieve self-determination. This, I thought, sounded self-contradictory.

I plowed on. The more I looked, the more unanswered questions I found. My exploration of party self-determination eventually resulted in a law review article that has just been published in The Newcastle Law Review, Is Party Self-Determination a Concept Without Content? [2020] NewcLawRw 4; (2020) 15 The Newcastle Law Review 68.

I concluded that party self-determination not only is a concept without content but that it lacks explanatory power to answer key questions like, Why does mediation work? How does it work? What can mediation advocates do to improve outcomes for their clients? Ultimately, I concluded, it was a concept that should be discarded as lacking usefulness.

Read my exploration of party self-determination and judge for yourself … does the emperor really have no clothes?