Should Every Dispute Be Mediated?

I’m often asked if mediation can be used with every kind of dispute.  As much as mediators would like to think so, there are situations in which mediation may be inappropriate.

One critical defining ethical consideration for mediation is self-determination, that is, parties must be able to make informed choices and arrive at voluntary uncoerced decisions. For instance, individuals under extreme emotional distress and/or under the influence of alcohol or drugs should not mediate. Individuals should be fully mentally competent to make informed decisions. When a party is not fully able to advocate for themselves, some mediators will participate if that party has representation. For example, a disputant of extremely advanced age found themselves in mediation. She appeared to be a little confused by the process. The mediator did conduct the mediation when the party was assisted by a representative from the Office of Aging who was careful to insure the person understood the issues, to advocate on her behalf and to insure the party made an informed decision.

Another area of concern deals with the relationship between the parties. Many mediators have long refused to mediate situations of physical or sexual abuse or, more generally, refused to mediate situations of extreme power imbalance. When there is a dispute between parties with an extreme power imbalance, the party with less power can feel intimated and make agreements not necessarily in their best interest out of fear. And the party with higher power can always withdraw from the mediation and impose a solution. Power can be a critical factor in mediation. Mediators must insure the parties understand and accept their inter-dependence and mutual power.

Finally there are situations in which mediation may not be the most appropriate method of dispute resolution. Some examples are:

1. When either or both parties want clarification of a law or otherwise want a judicial determination of a law. As the decision making in mediation is only between the parties, this does not occur in mediation.

2. When either or both parties want to influence or impact broader social policy. As mediation is basically private and confidential, this cannot be accomplished through mediation.

There are very few disputes that are not suitable for mediation. Mediation is most appropriate for disputes between parties with an ongoing relationship who wish to continue that affiliation. Even so, mediation is very flexible and adaptable and with the help of skilled mediators can be applied to most disputes.