Can Every Dispute Be Mediated?

Recently, a volunteer mediator asked me if all disputes could be mediated after reading a news story that Michigan State University will mediate with the more than 250 plaintiffs who filed lawsuits over Larry Nassar’s sexual assaults.

There are clearly some disputes where mediation is not appropriate, especially when one of the participants is not able to engage fully and effectively.  Examples of this are alcohol, drug or mental impairment, extreme emotional distress or other significant limitations on the individual's ability to communicate and make decisions.

The relationship between the parties can also limit the use of mediation: One party may be physically or emotionally afraid of being in the presence of the other party because of some past history. More broadly, if there is a major power imbalance between the two parties, mediation is potentially problematic. The party with more power may attempt to levearage that clout to force a favorable resolution or threaten to withdraw from the mediation and refuse to participate.

Also, with the exception of some victim-offender programs, criminal matters are not mediated.

Finally, some disputes are more appropriate for the courts: Clearly public policy issues are not appropriate for mediation. School desegregation, for example, was a public policy issue best suited for the courts and legislation.

So what are the issues in the Michigan State dispute? The survivors are claiming Title IX violations, sexual assault, battery, negligent supervision, negligent hiring and retention, and negligent failure to warn, train and educate. The university is claiming expired statute of limitations and immunity from liability as a state institution.

What then is being mediated with Michigan State and is this an appropriate use of mediation? The attorney for 150 of the victims has charged that Michigan State has agreed to mediation to avoid going to court where the survivors can make their message public. Michigan State’s interim president has said he is committed to concluding the dispute in a fair and just manner as soon as possible so the survivors will not have to endure years of court litigation.

The parties have agreed that Layn Phillips, a former U.S. attorney and former federal judge in Oklahoma, be the mediator. If an agreement in mediation is reached, it would be unprecedented.

My personal opinion is that there is a major power imbalance. At any point, Michigan State can withdraw from the mediation if their decision makers feel that the university can fair better in court.