WHAT SHOULDN’T BE MEDIATED

Some would say mediation can be used for any kind of dispute. Others are more cautious and say it’s not always appropriate.

I have concerns about extreme imbalances of power between parties that mediators are not able to address. This typically arises in family mediation when domestic violence or abuse has occurred. When the victim is threatened, even by being in the same room as the offender, the victim cannot be expected to make decisions in their best interest. For this reason, some contend that cases of domestic violence and abuse should never be mediated. The same can be said for bullying. I understand how the victim can feel threatened by being in the presence of the offender. However, some victims after careful preparation for the experience can find it empowering.

There are also concerns about the power imbalance in disputes between management and employees. It is understandable an employee may feel threatened by the dispute itself, as well as by agreeing to mediation. Workplace mediators can adapt the process to deal with the imbalance of power. The same imbalance of power occurs in parent–teen mediations, but, again, the mediator can adapt the process to deal with that issue.

Another situation I question is whether or not mediation is appropriate when a person refuses to attend the sessions and is only willing to send a representative with no power to settle. As a negotiating tactic, this creates an imbalance of power. I will not conduct a mediation unless all parties present have the authority to resolve the problems at hand.

Finally, mediation cannot be used to establish major policy precedents with application beyond the parties participating. Any agreement should apply only to those in the meditation. The court system is the appropriate venue for public policy change.

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Fred Jandt is the author of HOW TO SURVIVE A MEDIATION available wherever books are sold.