Recently, attorney Patricia Thompson posted an article at Mediate.com discussing unacceptable behavior by mediators or participants and I agree with many of her observations.

When one party in a mediation engages in abusive or aggressive behavior, including disrespectful and inappropriate language or nonverbal behavior, such as gestures or threatening posturing, the possibility for a peaceful and fair process is jeopardized. It is appropriate for the mediator or the offended party to act.

The mediator should establish guidelines for appropriate behavior before the session or during the introduction to the mediation process. Alternatively, the mediator should encourage the party to adopt appropriate guidelines themselves. Should those guidelines be violated, the mediator should respond by either discussing the violation with the parties in private caucuses or in joint session.

The offended party should not continue taking part in the mediation if they feel the other is behaving inappropriately. The offended party should raise their concern with the mediator and if the issues are not addressed, then they may request the process be terminated.

Mediators are generally sensitive to inappropriate behaviors as it is possible coercive conduct may be sufficient grounds to set aside a mediated agreement. To protect the process, the mediator may terminate the mediation at any time.

One benefit of a well conducted mediation is that it provides a setting where individuals can work together without fear of threat.

I am a strong advocate for using mediation whenever possible to facilitate parties reaching their own agreements. On occasion, I am asked when should a person not mediate.

The most direct answer is Standard One of “The Model Standards of Conduct for Mediators,” which establishes ethical guidelines for mediators. Standard One is “Self-determination,” where parties in a mediation must be able to reach a voluntary, uncoerced decision in which each party makes free and informed choices. Self-determination is a fundamental principle of mediation. If a mediator does not feel this principle can’t be met, they may decide to stop the session.

What, then, are examples where a mediator may pause the process?

The most obvious example is when one party has experienced or feels the threat of intimidation, duress, or physical violence. In family mediation a history of domestic violence may make it impossible for a party to express themselves and participate with their own self-interest in mind. In school and workplace mediation, where the issue is bullying, the victimized party may have a fear of future retribution for honestly expressing themselves.

Another obvious example is mental, psychological, and substance-abuse issues. If a party in some way lacks the necessary negotiation and decision-making skills, mediation is not appropriate, as there is no guarantee the person is reasoning well or understanding the process and outcome. The impairment need not be an ongoing condition. A party may be so emotionally distraught, there’s a need for postponement of the process until the party is better able to handle the emotional toll.

An underlying assumption of mediation is that parties are free and capable of negotiating and reaching an agreement as equals in the process without fear of future intimidation.

I’m asked about situations where one party has made it clear they do not intend to settle or one party feels the other only agrees to the mediation to learn more about the other’s position in preparation for later litigation. I’ve often had such parties in mediation and ask if they’d be willing to simply “give it a try.” In many of those cases, the parties who at first contended they had no intention of settling discover that mediation can, in fact, work for them and result in reaching an agreement.