When Mediation Doesn’t Work
By Patti Bertschler, PCC
Recently, we received a scathing (unsigned) letter from a man who had been through court mediation and apparently got the “short end of the stick.” Without going into his details, I’d like to clarify times when mediation is contraindicated and when attorney
representation is the best route to travel.
According to the American Bar Association, mediation does work 85-90% of the time.
(Elden and Ziebarth, March, 1999). Therefore, in a small percentage of cases, parties in mediation will fail to arrive at a mutually agreeable outcome. For this 10-15% of cases, times to avoid mediation include:
1. Domestic violence
In instances of violence or abuse, the victim has no equal say in the mediation outcome—with a few exceptions. If one party fears speaking up during mediation will lead to consequences to pay, mediation is not only pointless, it can be harmful to the victim. In 2003, training sponsored by the Ohio Commission on Dispute Resolution, the Ohio Supreme Courts and the Domestic Violence Center in Cleveland, three points were made regarding mediating domestic violence (DV) cases:
A. Mediators must begin screening for DV in their initial intakes, i.e.,
asking direct questions regarding abuse or neglect either past or
Many mediators do not typically screen for DV. Our training reinforces a focus that is so future-oriented (that-was-then-this-is-now approach), that mediators often do not inquire or feel a need to know what caused the rift. Their task is to keep the momentum away from causal details and work toward future solutions. The DV training encouraged mediators to question callers up front to help ensure safety if a question of abuse exists.
B. Some DV victims occasionally request mediation toward the end of
their DV treatment program.
Timothy Boehnlein, Prevention and Treatment Specialist and Manager of the Adult Domestic Abuse Prevention and Treatment (ADAPT) program in Cleveland teaches that victims—usually they are women—in treatment go through four stages:
compliance, strategic resistance, overt resistance, and gaining autonomy.
In the final stage, says Boehnlein, “The victim has more solid ego strength, a
support system in place, and is in better physical health. At this time, and only on occasion, a victim may feel strong enough to request mediation. If she and her divorcing partner go through the court systems, she often worries that her husband will have lawyered up with a high powered attorney, while she is unable to afford
this. She worries that the outcome will be skewed in the abuser’s favor. She believes that mediators, trained to watch for inequities, will have her best interests at heart.”
C. Mediators must build a Safety Plan.
A Safety Plan at a Domestic Violence Center includes elements such as strategies for safe traveling to and from treatment, and having phone numbers, money, shelters or other locations for her and her children lined up when she leaves the abuser. In mediation, the couple is present in the same room, so specific steps are taken to ensure safety as the victim leaves. In some cases, “shuttle mediation” is used. The victim and
abuser are in separate rooms; the mediator shuttles back and forth between the rooms for additional safety during mediation sessions.
2. Elder Abuse.
Elder Abuse is highly under-reported. Not only are elder victims psychologically fearful, they are often also disadvantaged physically. They may be on fixed incomes and aware that if they complain too much, their abusers may withhold food, clothing, medical care or other necessities that the elder is rightfully concerned about losing. Mediators who suspect fear in the senior or who have knowledge of past abuse must decline to mediate the conflict.
In early-stage dementia, mediation is acceptable if the mediator believes the individual has good decision-making ability with only occasional memory lapses. In cases of extreme memory impairment, the power obviously lies in the hands of the non-impaired party which would make mediation invalid. If a senior has given Power of Attorney to someone, that person can represent the senior in mediation, e.g., in a conflict with a nursing home.
4. Severe Mental Illness
Mediation is not recommended for persons actively psychotic, paranoid, sociopathic, or suffering from mental illness which severely limits one’s ability to hold equal power and decision-making ability, e.g., someone with Bipolar Disorder in a manic state. Most illnesses being treated, in remission or medication-managed seldom impede a person from mediating a dispute.
5. History of lying and/or breaking promises
If one has a history of lying, breaking promises or not being forthcoming about
disclosing information essential to a mediation agreement, this party is not a good candidate for mediation.
6. Illegal activity
If a mediator learns that a family is trying to scam the government or break a law concerning a deceased relative’s estate, (or any other instance of illegal activity), the
mediator should decline the case.
7. Suspicion that one party will be non-compliant
If mediators have evidence that one party has no intention of complying with the mediation outcome, they must not enter into the process or stop the process once begun.
Since we don’t know all details from our anonymous letter-writer, we can only speculate
that perhaps mediation should not have been attempted if one of the above elements was present. For the 85-90% of successes, mediation is well worth investigating as an option for dispute resolution.
September 12-13 Basic Mediation Training (12 CEUs/CLEs)
October 17 Advanced Elder Mediation Training (6 CEUs/ BENHA approved)
Classes are held at Northcoast Conflict Solutions, 7819 Broadview Road, Suite 4, Seven Hills, OH. Call (216) 236-6200 for registration information. www.ncsmediation.com