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. 

A student in one of my mediation classes once did an informal survey of the public’s familiarity with mediation and where they got help with conflicts.  Many of the people she asked in lines of grocery stores and other public places did not have a clear idea of what mediation is. Some had experience with family court mediation for child custody and visitation, but had no experience beyond that. And there were those who said something like, “it’s where you close your eyes and clear your mind.”

Where then do these people go for help with conflicts and are those sources really helpful? Many said they didn’t seek out help until the conflict escalated and required law enforcement and attorneys to be involved.

Increasingly, more and more people are learning about mediation and are seeking help at dispute resolution centers. A recent article in the Detroit News profiled The Resolution Center in Mount Clemens, Michigan. In 2017, that center alone handled 3,100 cases. Interestingly, the number of those that were referrals from the courts had declined while the number of people coming directly to the center had increased. People bring a wide variety of disputes to the center from Small Claims, school-based and family matters, such as siblings disputing guardianship of a parent.

Most dispute resolution centers in the U.S., like those in Michigan, are staffed by volunteers and are free or low cost. Most disputes are resolved in one session. But when the opposite occurs, mediators don’t consider an unresolved dispute a failure as the parties involved in the process develop a better understanding of their interests, which can lead to a resolution in the near future.

So, where do you find such help? First go online for community dispute resolution centers which are usually pretty affordable. There are also mediators who work independently but charge a fee for their service. Some of these are listed on the website mediate.com. That website also has resource material on mediation that can be helpful.