When to Call It Quits: Mediation Doesn’t Serve All Clients

Nicole Gesher

As a mediator, I like to think that alternative dispute resolution is the best kind of conflict resolution for most disputes (call me biased!).

But, occasionally, a case comes through the door that should not be in mediation and would be better served by lawyers, law enforcement, or mental health professionals. So while I am always hoping for the mediation sweet spot of compromise, collaboration, and closure, here are a few types of cases that an ethical and savvy mediator should avoid (or at least proceed with extreme caution) and refer to the right professional instead:

1. Any case with a significant power imbalance should most likely not be in mediation.

The parties should be on roughly equal footing intellectually, and there can be no element of intimidation or coercion. Sometimes a slight imbalance can be corrected by ensuring the party at a deficit has legal representation to help with their decision making process, but not always.

2. Domestic violence serves as an excellent example in which even a represented party may not feel adequately empowered/autonomous.

Even if the victim has an attorney, he or she may still be unable to make decisions without feeling the undue influence of the aggressor. In cases like this, it’s best to have the victim represented by an attorney, and walk away from mediation. Depending on the severity of the situation, law enforcement involvement may be warranted if the abuse has been hidden.

3. Any case where the parties have no trust and it seems a remote possibility they will be able to rebuild any semblance of a working relationship does not belong in mediation.

Sometimes, a mediator needs to calmly look at the level of conflict and distrust in the room, and decide for the benefit of all concerned, that mediation is not going to work. It can be a welcome challenge to help clients rebuild their faith in each other and steer them towards resolution (and very satisfying to work successfully through this challenge as a mediator), but it’s worth keeping in mind if the clients would be best served by having their respective attorneys hash out the details, saving time, expense, and the aggravation of a mediation that is not making progress.

A conscientious mediator needs to be quite certain that the parties are fully informed and empowered at every step along the way to a signed agreement. Otherwise, a mediator runs the risk of having the agreement invalidated and being on the hook for malpractice.

Both of these unpleasant scenarios can be prudently avoided with a few choice questions during the initial client interview (domestic violence screening, analysis of the relationship between the parties, etc.), and a careful monitoring of power dynamics as the mediation progresses.

About the author:

In her mediation practice, Nicole Gesher focuses on business/corporate/nonprofit disputes, neighborhood issues, family law, debt allocation, and intellectual property disputes, and is especially skilled at working with emotionally charged cases. She has been a panelist for BASF’s Mediation Services since 2010. More information about her and about BASF’s mediation program can be found at www.sfbar.org/mediation.