Occasionally, I receive calls from volunteer court mediators asking my advice on how to handle unique situations. Actually, many of the questions reflect one concern: How do I deal with a disputant who, for whatever reason, is not as skilled in language and problem solving as their adversary?

Mediators are bound by ethical guidelines and it is just this question that has troubled many who do this type of work. First and foremost, mediators must conduct a session on the principle of self-determination. That is, the mediation must ensure that each party makes free and informed choices as to the outcome. Equally important, the mediator conduct sessions in an impartial manner and avoid any conduct that even gives the appearance of partiality.

Consider a mediation among neighbors in a housing complex where, for whatever reason, one party exhibits limited spoken language skills. Should the mediator assist to ensure that party is better able to present themselves verbally even though it may appear to the other party that the mediator is helping the other?

This may seem like a simple example, but the issue has generated much professional debate and learned papers. The debate is which is more important—impartiality or a fair process? There are strong arguments to be made on either side.

The Model Standards of Conduct for Mediators does contain this language: “…a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process.” Each mediator has to address this question for themselves. I have on occasion gone in the direction of helping one party after fully explaining my reasons to the other party in private caucus. In every instance I have done this, the mediation was successful and each party was appreciative of how the process had been modified. In this question, then, I lean toward ensuring a fair process for all the disputants.

In past postings I’ve written about the mediation of restraining orders. While most are the result of issues dealing in marital and domestic partner disputes or between neighbors, friends and ex-lovers, they are also filed by roommates and co-workers who seek a Temporary Restraining Order (TRO). Generally the applicant must show in a signed, sworn affidavit that immediate irreparable injury, loss, or damage will result to them. TROs are only issued for a limited number of days, generally up to ten.  After the adverse party has been given notice, a hearing is held to determine if a permanent restraining order should be issued.

I participated in a court program that gave the parties the opportunity to try mediation prior to the court date for the permanent restraining order.

One such case was a mother who applied for a TRO on behalf of her daughter against another young girl. Both girls and their parents attended the session. After explaining the purpose of the mediation I asked the party that applied for the TRO to tell her story. The mother spoke for her daughter. It seems she felt bullied by her classmates who had been taking pictures of her as she exited the school bus and texted comments about her weight to other students in their class. Her mother also said that the girls were making comments about her daughter’s weight in the cafeteria and in the school hallways. Her mother did most of the talking. Her daughter only confirmed what her mother was saying to be true.

The other girl’s mother spoke next and only said that the victim had really been the instigator by spreading rumors about the other girls. Her daughter had much to say about how the victim of bullying had really been the offender.

 California school districts are required to adopt policies prohibiting bullying. When school personnel become aware of bullying they are encouraged to refer students to the school counselor or other support services and must inform parents when students are involved and provide parents with resources on bullying. When I asked if the school had been informed, the girl’s parents said they had but she still wanted the protection of a restraining order. The offender’s mother did not want a mediation agreement in which identified her daughter as committing these alleged acts. As a consequence, no agreement was reached during the mediation.

Should this case have been referred to mediation since neither of the girls seemed willing to take responsibility? Both mothers appeared to want to have the behaviors stopped, but were unable to make that happen on their own and clearly wanted the court to make it happen.

Not all mediations end the way an outside observer might want them to. But a mediation agreement is dependent on the parties wanting to reach an agreement. If the parties don’t want to settle, a settlement is not going to happen. I did check the court’s records for this case. It was dismissed by the judge and no restraining order was issued.