Safety in Mediation
Mediation is almost always less combative and much easier on the parties than the adversarial nature of a trial. That is not to say that it is unusual for some people to become disgruntled during a mediation. They can be angry about the first demand or the first offer of the other party, for example. Often parties unfamiliar with the process can become frustrated at the time it takes to reach resolution. It is just human nature.
Unfortunately however, there are times when someone becomes so angry that safety of the parties, lawyers or mediator becomes a concern. This can come up unexpectedly in many different kinds of cases. For example:
There may be an elderly litigant being bullied by a close family member into settling the probate of her sibling’s estate and one becomes concerned about the possibility of more serious elder abuse occurring in her home. This situation prevents an uncoerced voluntary decision .
Just as dangerous is a situation in which one of the parties is a victim of domestic abuse and the abuser is actually in the room, pressing the abused to settle the case, involving perhaps an accident. Because of fear of the abuser, the abused’s decision to accept or deny an offer is not totally voluntary.
A party may be present for “support” of a spouse in a sexual harassment case with a claim against the spouse’s boss. It becomes painfully clear that the “ supportive spouse “ has an explosive temper. This is often directed at the mediator if the “ supportive spouse”can not bully his or her way to what the bully deems to be an acceptable settlement.
Each of these situations involves a person with what has been called a “high conflict personality”, creating a potentially dangerous situation.
Because its hard to reason with someone when they are in a highly agitated state, the mediator, lawyers and other parties must handle the situation carefully . They must first ensure their own safety.
Keeping everyone apart as much as possible is much easier if the mediation is held online. Everyone can be put into separate rooms, virtually. This remains a problem however if the highly aggressive person is in the same room and sharing the video screen with the affected party. The mediator must then take control of the situation and make sure that any settlement is truly made voluntarily.
If the mediation is in person, everyone should always be kept in separate rooms, physically far from each other, even on different floors, if available. If, however, the agitated party is a family member or friend of the affected party, the mediator can ask the non-party “ supporter” to step out of the room for a few minutes so the mediator can talk directly to the affected party to determine how best to proceed. It is the affected party’s case and self determination of the party should be determinative. The lawyer should be of help as well.
If there is a fear of someone potentially having a weapon, the mediator or the attorney may be able to contact someone in the courts or elsewhere (for example, a library) to secure a couple of conference rooms for the mediation at a location where people must go through a metal detector as they enter the building.
Every situation is different. How to handle it best depends upon the target of the aggression. It is still possible to have a successful mediation, however, in most instances. A mediator can help defuse the situation if they have been trained in how to handle a “ high conflict personality”. Under most circumstances there are ways to deal with these situations so the mediation can continue and be successful. Still, safety must be the top priority. If it becomes too dangerous, the mediation can and should be adjourned. This is definitely the exception and not the rule, but it is important to think about ahead of time and develop ways to handle matters, “just in case.”