For years, the conventional wisdom in the mediation community has dictated that there are cases for which mediation is not indicated. Among the traditional red flags that would preclude participating in a mediation are substance abuse, for example, or mental illness. And, most commonly cited, mediation is inappropriate for cases in which there has been domestic violence. The common characteristic each presents is a likely power imbalance—one that cannot be effectively addressed or corrected by the mediator. For instance, are drug abusers making decisions for fear of what may be exposed about them in court? Are they legally capable of making decisions at all? At the same time, mediation is an elastic process, one that is meant to adjust to the needs and capacities of the parties, to accommodate each individual and the conflict he or she seeks to resolve.
These two ideas—elasticity and ruling out mediation—present a tension, one that mediators grapple with, to some extent, in every case that comes before them. Generally, mediators tend to bend, to try and help re-balance the power, thereby assisting parties in conflict in reaching resolution.
