The goal of mediation is to facilitate a negotiated resolution of disputes through party self-determination. For that objective to be met, such that stakeholders agree to a deal of their own will, the process must be free of coercion. Certain disputes inherently involve coercion that may undermine the process, require different standards, or render mediation unsuitable for the situation. This can include, among others, disputes arising from domestic abuse or bullying at work or school. Even in business disputes, a party or counsel may inject threats, intimidation, or even property damage or physical violence that undermines the ability of a party to make unfettered decisions. In mediation, the third-party neutral bears principal responsibility to ensure a fair and appropriate proceeding. Counsel shares responsibility for abiding by standards of conduct. If someone veers off course, there are concrete steps participants can take to regain or maintain control, including, as a last resort, terminating the mediation. Mediators and counsel must also navigate the ethical rules on confidentiality when determining whether they can or must report threats or violence. These challenges can be heightened in domestic disputes.
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The issues surrounding actual or threatened physical violence in mediation are complex and multifaceted. The focus here is fourfold: (1) assessing whether mediation is appropriate for all disputes; (2) meeting ethical and professional responsibilities to ensure a safe environment for mediation; (3) employing effective strategies to prevent and manage where there is potential for threats or actual violence; and (4) recognizing customized procedures for domestic disputes.
Inherent in dispute resolution is the possibility of escalating conduct that crosses the line. Mediation conduct can range from aggressive advocacy to incivility to property damage to physical harm. Conduct can fall anywhere on a continuum from acceptable to unacceptable, with certain communications and actions running afoul of the ethical rules or applicable law, putting stakeholders at risk. For this discussion, threats of violence or actual violence mean potential or actual physical harm to a person. Other conduct, such as raised voices, rudeness, and demeaning comments, can intimidate participants and undermine the resolution process. Threats or actions inflicting property damage can also be violent. There is not always a bright line delineating non-violent from violent conduct in mediation. There are ways in which participants defy ethical rules and codes of conduct short of injuring a person, which interfere with a just and fair resolution process. This discussion focuses on statements and actions that convey an intent to cause more than emotional, reputational, financial, or property harm. It addresses statements that are intended or likely to be perceived as portending personal injury. It also addresses actions that cause physical harm to another.
Are Certain Disputes Unsuitable for Mediation?
Mediation can be voluntary or by agreement of the parties, or it can be mandated by law or court rules. This form of facilitated negotiation is a valuable tool for resolving disputes. In considering voluntary mediation, parties can consider whether there is a genuine threat or risk of violence and decline to participate. Alternatively, they can condition participation on setting guardrails to protect against harm during the mediation process. This is commonly the case in business disputes, where emotions are less likely to be as volatile as in other matters. However, there are situations where mediation may be risky or inadvisable, especially where the parties will be face-to-face or in the same location. These disputes often involve a history of intimidation or a stark imbalance of power. Cases arising from domestic violence, custody battles, workplace harassment, or schoolyard bullying fall in this category.
One context where violence or threats of harm are more likely than others is when the dispute involves prior violence or threats, regardless of the subject matter. When a restraining order is already in place for prior misconduct, that is a red flag signaling risk of violence in mediation. Even without existing protective orders, any dispute in which emotions run high can lead to volatile proceedings. The disputes may involve landlord-tenant matters, employment disputes, probate matters, and others. There is even risk in garden-variety civil disputes, such as breach of contract. No dispute is necessarily immune from spinning out of control.
Given the likelihood of threats or violence, it is surprising when jurisdictions mandate mediation for certain disputes. If mediation is not by choice but required, it can be challenging for stakeholders involved in sensitive domestic or juvenile matters. These situations have potential for veering off course. In addition, a party may feel vulnerable and intimidated by the adverse party, which undermines the ability to exercise self-determination in reaching a resolution. A fulsome discussion about the wisdom of mandatory mediation in these circumstances is beyond the purview of this article. One perspective on these issues can be found in Revisiting the Impact of California's Mandatory Custody Mediation Program on Victims of Domestic Violence through a Feminist Positionality Lens. Strategies for preparing for and managing mediation, voluntary or compulsory, when tension is high are discussed below.
What Are the Responsibilities of Mediators and Counselors to Ensure Safe Mediation?
Expectations of Mediators Regarding Threats or Actual Physical Harm
Although the neutral has the greatest responsibility to protect against threats and violent acts, counsel and parties have responsibilities as well. All are bound to obey the law, which includes refraining from harming others. For mediators, they may be lawyers subject to rules of professional conduct as well as mediation rules of the forum of the underlying dispute. Neutrals who are not licensed lawyers are still bound by any forum laws or rules governing standards for mediators. Advocates representing clients in the process are bound by the applicable rules of professional conduct as well as any rules relating to counsel conduct in mediation. Finally, in addition to being bound by governing laws defining certain behavior as criminal, parties in mediation may also be required to comply with rules applicable to the forum in which disputes or mediation occur.
The mediator has to reconcile the inherent tension between the duty to maintain confidentiality about the substance of the mediation and any competing duties to protect other stakeholders from physical harm. Lawyer mediators are first bound by the rules of professional conduct for the jurisdiction. The ABA Model Rules of Professional Conduct (“ABA Model Rules”) serve as a template for states, but each state can establish its own rules. That is only the first tier of requirements to consider.
Under the ABA Model Rules, Rule 2.4 (Lawyer Serving as Third-Party Neutral):
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.
(Italics added).
Comment [2] to the Rule provides further guidance:
The role of a third-party neutral is not unique to lawyers, although, in some court-connected contexts, only lawyers are allowed to serve in this role or to handle certain types of cases. In performing this role, the lawyer may be subject to court rules or other law that apply either to third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to various codes of ethics, such as … the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association, and the Society of Professionals in Dispute Resolution [“AAA/ABA Model Standards for Mediators” or “Model Standards”].
The AAA/ABA Model Standards for Mediators do not have legal force unless a legal authority adopts them or parties agree to honor them. The Model Standards include nine specific Standards: I – Self-Determination, II - Impartiality, III - Conflicts of Interest, IV - Competence, V – Confidentiality, VI – Quality of the Process, VII – Advertising and Solicitation, VIII– Fees and Other Charges, and IX – Advancement of Mediation Practice. When there is a threat or actual violence, it creates a tug-of-war between Confidentiality and Quality of the Process.
Standard V Confidentiality provides in part: “A. A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.” (Italics added). However, Standard VI Quality of the Process leaves open an exception to the broad mandate, providing in part:
A. A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants. …
9. If a mediation is being used to further criminal conduct, a mediator should take appropriate steps, including if necessary, postponing, withdrawing from or terminating the mediation. …
B. If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps, including if necessary, postponing, withdrawing from or terminating the mediation.
C. If a mediator believes that participant conduct, including that of the mediator, jeopardizes conducting a mediation consistent with these Standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
(Italics added).
These Standards do not specify whether a mediator, faced with threats, criminal activity, or violence, may disclose confidential information obtained in mediation to anyone, including authorities or potential victims, to prevent harm. On their face, such disclosure is impermissible unless agreed or “required by applicable law.” Courts and other alternative dispute resolution administrators may have their own expectations about how mediators reconcile the potentially conflicting principles of confidentiality and quality of process.
To ascertain whether disclosure is required or permitted, a mediator must know what laws and rules apply to the forum. Some states have adopted a form of the Uniform Mediation Act, which tackles this challenge head-on. For example, the Utah Uniform Mediation Act, 78B-10-101 et seq., recognizes that “mediation communication is privileged … and not subject to discovery or admissible in evidence unless [specified conditions are met]”. 78B-10-104. The Utah statute further states in Section 78B-10-106 “Exceptions to privilege”:
(1) There is no privilege under Section 78B-10-104 for a mediation communication that is, among other things:
(c) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(d) intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity …
Other states have adopted similar terms; the mediator should understand the parameters under which they practice. States also have laws that require certain professionals to disclose threats or violence, such as situations in which a child is in danger. A comprehensive appreciation of the applicable law and standards is integral to meeting the AAA/ABA Model Standard IV Competence (Standard IV) “having “the necessary competence to satisfy the reasonable expectations of the parties.”
Further, Model Standard I(A) Self-Determination requires a mediator to conduct the process “based on the principle of self-determination,” defined as “coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” When a party has experienced physical harm inflicted by an adverse party or feels at risk of being injured, they lose the ability to make “free and informed” decisions.
Given the patchwork quilt of expectations mediators face regarding threats or actual violence during the dispute resolution process, this is challenging to navigate. Planning ahead, particularly when there is reason to anticipate difficulty, can help prevent or manage volatile proceedings as discussed below.
Expectations of Lawyer Advocates Regarding Threats or Actual Harm
Lawyers representing clients in mediation are bound by a range of rules governing their obligations to clients, opposing parties, their counsel, and the tribunal or forum in which they practice. The best place to begin assessing duties in mediation is the rules of professional conduct for the practice jurisdiction. Advocates owe duties to clients generally and in mediation specifically, including, among others, the ABA Model Rules, duties of Competence (Rule 1.1), Diligence (Rule 1.3), Communication (Rule 1.4), and Confidentiality of Information (Rule 1.6).
Rule 1.1 states: “A lawyer shall provide competent representation to a client. Competent representation requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” (Italics added.) Rule 1.3 provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.” (Italics added.) Rule 1.4 provides in part:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, …;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter; …
(b) A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.
(Italics added.)
Competence and diligence when mediating disputes where threats or violence are a risk requires counsel to conduct a thorough investigation of the underlying dispute. This requires understanding the history between the parties, including whether their client has engaged in or been the victim of inappropriate behavior. Advising on safety similarly requires preparation. That may involve seeking a protective order, alerting the neutral, arranging for a safe setting, or ensuring separate caucuses with no physical proximity to the threatening person. To assess the options and protect clients and themselves (as well as the mediator) from harm, advocates preparing for mediation need to communicate with clients so they can consult effectively about the means of accomplishing the mediation goals and make informed decisions on whether and how to proceed in difficult circumstances.
On the other side, advocates may need to counsel the client on the risks of perpetuating aggressive acts or alerting the neutral of concerns. Faced with a volatile client, counsel should also consider Rule 1.6 Confidentiality of Information. It provides in part:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm …
(Italics added). Comment [6] to Rule 1.6 provides staties in part:
… Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. …
(Italics added). The Model Rule states a lawyer “may reveal [confidential client] information” to fend off “reasonably certain death or substantial bodily harm,” but not all states follow this standard. Jurisdictions may deviate from this standard and mandate disclosure if there is a risk of “death or substantial bodily harm.” Others may permit or require disclosure even faced with the potential for less severe physical harm.
Is a lawyer representing a client who states they intend to assault someone at mediation duty-bound to keep this information confidential? It depends on the forum’s rules. Counsel may have disclosure duties to other stakeholders, such as the mediator, opposing counsel, or adverse parties, depending on the specific rules of professional conduct and any other laws or regulations that apply in that jurisdiction, considering the severity of the threat and the lawyer’s reasonable assessment of the client’s likelihood of following through on the threat.
In addition, many jurisdictions, courts, and administrative entities have their own rules, including Civility Codes and Standards of Conduct that extend to all stakeholders. In addition to the Model Standards for Mediators, the American Arbitration Association-International Centre for Dispute Resolution (AAA-ICDR®) Standards of Conduct for Parties and Representatives (the “AAA-ICDR Standards of Conduct”) requires parties and their representatives (“Participants”) to conduct themselves in an appropriate manner when utilizing the AAA’s services. Among other things, the AAA-ICDR Standards of Conduct require that Participants:
- “treat all employees and others involved in the proceedings in a courteous, respectful and civil manner;”
- refrain from “engag[ing] in harassing, threatening, or intimidating conduct toward AAA employees or arbitrators/mediators.”
- counsel “advise their clients and witnesses of the appropriate conduct that is expected of them during the proceedings;”
- “refrain from using vulgar, profane, or otherwise inappropriate language” [which should foreclose making threats of violence]; and
- “shall not threaten violence or other unlawful conduct.”
The AAA-ICDR Standards of Conduct expressly state with respect to threats of violence or unlawful conduct, “AAA will not tolerate any such threats and will forward them to law enforcement authorities.”
Expectations of Parties Regarding Threats or Actual Harm
Parties in dispute resolution are not exempt from the responsibility to maintain a safe environment. In addition to legal constraints that apply regardless of the mediation setting, such as laws forbidding assault, they may be bound by other constraints. These may arise from the parties’ contract, engagement agreements with counsel, mediation agreements, or the court or forum administering the mediation. For example, the AAA-ICDR Standards of Conduct apply to parties; if parties threaten violence or engage in unlawful conduct such as assault in a mediation administered by the AAA, the AAA will report them.
How Do Participants Prevent and Address Threats and Actual Violence in Mediation?
Planning to Avoid Escalation to Threats or Violence
Before a mediator is engaged, counsel and parties are in the best position to flag potential risks based upon prior interactions and the nature of the dispute. A party may want to exploit the proximity of in-person mediation to intimidate the other party into capitulation. Counsel should assess whether their client is at risk for committing violence or being subjected to violence, as well as the potential for violence directed at any participant. Even without divulging client confidential information, counsel concerned about safety can take steps to avoid clients committing physical harm. Counsel can withdraw from the representation or ensure the mediation does not proceed in person with the stakeholders in close proximity. Counsel can arrange for remote mediation, for the parties to be in separate locations or in a secure facility such as the courthouse.
Similarly, mediators should engage with counsel in advance to assess the possibility of violence, especially in disputes where there is a background of hostile physical interaction. Mediators should explore whether joint sessions in one location are sensible given the circumstances. Mediators can employ security, prevent close physical contact between the parties, utilize online services for mediation, or schedule the mediation to take place in court facilities. They can also inquire about gun possession and mandate that participants cannot bring weapons, even in states where individuals have a license to carry a gun.
Strategies for De-escalating Volatile Situations
Sometimes we cannot predict how a proceeding will escalate, or our best efforts to prevent threats or violence are unsuccessful. Faced with increasing or unexpected hostility, there are steps a mediator and counsel can take to calm things down to protect all participants, including themselves.
Mediators perceiving hostility rising with the potential to disrupt the proceedings can first enlist their skills to listen carefully and patiently. When a party becomes frustrated or feels ignored or disrespected, they are likely to lash out verbally or otherwise. By allowing a party to vent its emotions in a private caucus, the mediator may alleviate pent-up feelings that would otherwise erupt unproductively. Mediators can also maintain party separation to avoid face-to-face confrontation, allowing the party to calm down before moving on. This may involve using physical separation in different breakrooms or conducting proceedings remotely. By reassuring a party that they have the power to decide whether to accept proposed terms and that neither the mediator nor anyone else can compel them to accept a deal if they do not want to do so, the mediator can alleviate stress. It is important for the mediator not to return fire by responding to hostility with a heated response. Poise under pressure is critical to avoid making the situation worse. Sometimes, the mediator can lighten the mood by offering refreshments, assuring the setting is comfortable, and taking a break from the substantive dialogue. People are more apt to lose control if they are tired, hungry, or uncomfortable. If necessary, the mediator can enlist on-site security to maintain order. Declaring an impasse and enabling the parties to depart separately and safely may not be ideal, but it may be necessary as a last resort.
Counsel also has a role in tamping down the situation before it boils over. It may help to insist on a time-out to allow clients to share their disappointment with the process. Having clients telephone a family member or friend who may provide support or encouragement can also redirect someone who is about to explode. If a support person is involved and privy to the proceedings, they should be required to execute and abide by the confidentiality agreement. If these techniques are not improving the situation, counsel should make the decision to adjourn for the day to allow time for passions to abate and to further counsel the client on best practices for reaching a resolution.
Are Different Standards Appropriate for Family and Divorce Mediation?
There are unique dynamics in domestic disputes that require heightened care, especially when minor children are involved. In 2025, the Association of Family and Conciliation Courts (“AFCC”) updated its longstanding guidance by issuing the Model Standards for Family and Divorce Mediation (“Model Family Mediation Standards”). The Model Family Standards were developed by the AFCC along with the ABA Family Law Section Task Force to revise the Model Standards of Practice for Family and Divorce Mediation (referring to AFCC’s prior guidance, first released in 1984 and updated thereafter). The sensitivity surrounding domestic violence, custody, and related issues warrants exhaustive treatment. The objective here is not to provide a comprehensive analysis, but to alert neutrals and counsel that undertaking mediation in family and divorce matters should not be done lightly. Practitioners, whether neutral or advocates, should be well-versed in this distinct mediation field before proceeding.
According to the Introduction to the Model Family Mediation Standards, “[t]he mediator must understand the role that culture and diversity play in the lives of participants and be able to identify and appropriately respond to families whose histories include domestic abuse and/or child maltreatment.” In this context, “Domestic abuse” is defined to encompass far more than violence resulting in physical harm. It includes “physically, sexually, economically, psychologically, and coercively controlling behaviors directed by or against current or former family of household members.” The Model Family Mediation Standards address I – Self-Determination, II – Informed Decision-Making, III – Education of Parties, IV -Barriers to Participation and Process Modification, V –Domestic Abuse, VI –Child Maltreatment, VII –Impartiality and Conflict of Interest, VIII– Confidentiality, IX – Technology, X – Child-Centered Process, XI – Termination, XII – Training and Professional Competence, XIII – Mediation Fees, Compensation, and Timing, XV – Advertisement, Solicitation, and Marketing. Concern about the impact of prior violence (or other forms of abuse) and the potential for violence or abuse during mediation are central to the practices advanced by these Standards.
For example, Standard I Self-Determination, enabling parties to make voluntary decisions, recognizes “[t]he mediator shall address dynamics that might undermine the parties’ ability to meaningfully participate in mediation, including past or present domestic abuse, child maltreatment, behavioral concerns …” Standard II Informed Decision- Making requires that “[t]he mediator shall facilitate safe and accurate disclosure of information so that parties can make informed decisions.” Standard IV Barriers to Participation and Process Modification requires the mediator confer with parties “separately and confidentially” to assess “whether the process is likely to be safe and result in safe and workable outcomes” and “barriers to participation including past or present domestica abuse, child maltreatment, behavioral concern…” The issues of Domestic Abuse and Child Maltreatment are also covered in detail in Standards V and VI, respectively.
Standard VIII Confidentiality, the duty to maintain mediation confidentiality often limits participants’ ability to report threats or violence, depending on applicable law. In Family and Divorce Mediation, the balance between secrecy and averting harm tips more decidedly towards protecting participants from abuse and violence. Standard VIII (B) recognizes that there are “limitations of confidentiality and privilege.” In this type of mediation, “exceptions to confidentiality that may require disclosure … include but are not limited to child maltreatment; threats of harm, including suicide or violence; and those provided by law.”
The Model Family Mediation Standards also require the mediator to suspend or terminate mediation “when the mediator reasonably believes a party is unable or unwilling to safely and effectively participate …” Standard XI. These situations can include “the safety of a participant or wellbeing of a child is threatened” (IX(a)(2)), “a party has or is threatening to abduct a child” (IX(a)(3)), and “a party is unable or unwilling to participate and maintain the integrity of the process for any reason, including … any form of domestic abuse …”( IX(a)(4)).
The Standards discussed provide a lens into the overall framework, but more thoughtful analysis is required to appreciate the challenges unique to mediating intimate family disputes. Although the Model Family Mediation Standards focus on family and divorce, the values promoted and mandates for mediators could have broader application to other disputes. They may be especially useful where there is a history of threatened or actual physical harm.
Conclusion
With so much violence in the news, mediators and advocates need to be sensitive to dynamics both before and during mediation to fend off serious problems. They should have command of the laws and rules that apply to their conduct with respect to clients and other participants to avoid physical harm to anyone. By doing so, they minimize exposure to ethical violations or malpractice. If there is reason to believe a stakeholder may resort to violence, mediators and counsel should establish protocols to maintain physical separation or enlist security. If unexpected threats or violence erupt, mediators should be prepared to separate the offending person, terminate the mediation, and ensure others are escorted to a safe location. There is no foolproof strategy, but these steps can reduce risk.
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Francine Griesing, Founder of Griesing Law, LLC, has been involved in every aspect of litigation and alternative dispute resolution over the past 40-plus years. She represented individual and institutional plaintiffs and defendants as an advocate in business litigation, employment, and alternative dispute resolution. Her clients included professionals, executives, entrepreneurs, law firms, public and privately held companies, nonprofits, higher education institutions, and government entities. With over 30 years of experience as a neutral arbitrator and mediator, she now concentrates on dispute prevention and resolution. You can contact her at fgriesing@griesinglaw.com.