It’s not unusual for me to receive an email from a former student asking my opinion about a situation they dealt with in a mediation. Recently, I received one from a Small Claims Court volunteer who asked for help.

He was mediating a dispute over an auto sale. The seller had asserted that the car would pass the smog test. However, when the buyer took the car in for an inspection it didn't pass and some minor repair work would be required it to do so. The buyer wanted the seller to pay for those repairs within a week. The seller did not contest being responsible for the repairs, but categorically refused to pay for those repairs within a week's time. At that point, the mediation reached a stalemate as both buyer and seller refused to budge. As the parties could not settle, the matter was referred to the judge.

My former student’s question was what could he have done to help the parties resolve their dispute. He felt that if he had known more about the legal issues he would've been able to better assist the parties.

Before I tell you how I answered his question, I must explain different styles of mediation. The evaluative style of mediation is most often conducted by attorneys and retired judges in which the mediator is active in evaluating parties’ cases and strongly suggests possible solutions. In facilitative style, the mediator does not evaluate the parties’ cases nor suggest possible solutions but rather guide the parties in reaching solutions of their own. Generally, community mediation centers and Small Claims Court volunteer mediation services use the facilitative style in the principle that in mediation parties must be able to determine their own outcomes, and along the way, learn some valuable problem-solving skills, which will help them in future disputes.

Facilitative mediators, such as those in community mediation centers and in Small Claims Courts, do not solve the disputants’ problems for them. In fact, I tell beginning volunteer mediators who typically have had successful careers involving problem solving, that the most difficult skill to learn will be how not to solve disputants’ problems for them.

So back to my former student’s question: What could he have done to help the car seller and buyer without solving the problem for them? I reminded him of one of the most important “tools” a mediator can use, which is to ask questions. Asking questions can encourage disputants to think, to evaluate and to be creative about their positions. For example, “Do you still want to purchase this car? What things could you suggest to make that possible?” and “If this sale falls though, what options do you have?” and “Why does one week make such a difference?”

In all sorts of disputes, mediators ask all sorts of questions. Asking questions doesn’t tell people what to do, but it can encourage parties to think more broadly. And anyone can apply this skill.  Rather than tell a person in conflict what to do and risk becoming involved or risk becoming liable for the suggestion, consider just asking questions.

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.