I once had a person tell me they would never use mediation again after their first experience. I asked why.  Their answer:  "I felt the mediator forced me to accept her solution."

This was clearly an unfortunate example. Standard One of the "Model Standards of Conduct for Mediators" is self-determination, which is defined as "the act of coming to a voluntary uncoerced decision in which each party makes free and informed choices as to process and outcome."

This standard is generally assumed to apply both to mediations in which the parties voluntarily elect to mediate and those in which a court has made mediation mandatory. In these cases, while a court may order participants to attend mediation, the court and the mediator may not mandate the extent of the parties' participation nor force or coerce a party to settle. Standard One makes it clear that mediators should inform the parties that participation is voluntary and that any party may withdraw from the process at any time.

Proponents of mediation, such as myself, strongly contend that the voluntary nature of mediation leads to better settlements than imposed decisions by third parties. It leads to greater satisfaction overall and the likelihood that the parties will follow through with the terms of their agreement. 

But realistically, mediators will also talk about the tools used to encourage parties to settle. I know I do. So the question becomes, "When does encourage become coerce?" 

For example, one tool mediators may use is "deadline pressure" to encourage the parties to reach an agreement. When a mediator says, "It's almost lunchtime. Let's see what we can do to wrap this up before lunch." Is that encouragement or coercion? Or when a mediator reminds the parties of the negative consequences of not reaching an agreement, is that encouragement or coercion?

Today there are those arguing that "times have changed" and that courts and corporations expect that mediators push for agreements and that mediators, such as I, who advocate for self-determination, are living in the era when mediation became popular in community mediation centers when self-determination was the defining characteristic of the process. Perhaps I am advocating "pure" self-determination. As one author has written, all mediations are voluntary, it's just that some are more voluntary than others.

In my opinion, mediators must explain the process he or she intends to use to the parties and that the parties must agree to that approach. Going back to Standard One, parties should be able to make free and informed choices as to PROCESS as well as OUTCOME. If a mediator intends to press for an agreement, I believe that approach should reveal that to the parties so that they have the opportunity to decline participation or request the use of another style of mediation or another mediator entirely.

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.