Just as the lotus flowers in the photo are not real and are actually floating glass sculptures, we need to be transparent with what mediation will mean for practitioners and clients. As mediation becomes a more important part of the dispute resolution landscape with courts in various countries and states implementing mandatory mediation provisions, we as practitioners need to be transparent with what mediation means for those who have been requested to use the process. However, even mediation practitioners cannot agree on what constitutes mediation with some practitioners using problem solving mediation, evaluative mediation, transformative mediation or other variations of mediation practice. Even more difficult is to convey to the users of a mediation process what they will be encountering.
Some of our colleagues, Daniel Rainey and Ana Maria Maia Goncalves have been working to develop something they have labelled a Universal Disclosure Protocol for Mediation (UDPM). The purpose of this effort is to be sure that everyone in a mediation has agreed to the same process. Further, the enforcement provisions of the Singapore Convention mean that a court could be enforcing a settlement agreement reached through mediation, and if the parties to the mediation did not realize all of the potential outcomes before agreeing to mediation, there is the risk of a coercive outcome. Not only should the different mediation standards and concepts across international boundaries be considered, so should cultural differences within a multi-cultural society be considered. In short, the effort of the UDPM is not to try to standardize mediation, but to be sure that everyone involved in a mediation is aware of the mediation process and potential outcomes that could come from agreeing to mediation.
Disclosure discussions among the parties which will be involved in the mediation would ensure that everyone is working with the same set of assumptions, and would ensure the transparency of the mediation process. If there is total transparency at the beginning of the mediation, the parties will be much less likely to find themselves in a situation where a coercive outcome is possible without their understanding. Self-determination is still one of the most important values that guides mediation, and transparency will help to ensure that that value is honored.