Can mediation be used for everything?

An interesting question was raised today at a seminar ... can mediation be used for every type of dispute?
Much is available on-line about where it can be used. Between School Kids - yes; Between a convicted murder and the victims family - yes; mining company and indigenous people - yes; between 2 political parites - shoud happen more often; between two warring nations - yes; Mel Gibson and his ex-girlfriend Oksana Grigorieva - you bet!

So when is it just not possible to set up a mediation?



Needless to say - mediation requires:


Voluntariness, confidentiality, capacity to enter mediation, impartial mediator to facilitate the mediation who is precluded from providing advice and results in a non-binding (but certainly persuasive in court) agreement.

Given that ingredient where are the limits - I concede that this has been quite a challenge to find matters beyond mediations even if all parties agreed to attend in good faith and agree in principle to the terms above.

For the purpose of this exercise I shall avoid instances where mediation can not continue due to the application of other laws (ie mandatory reporting laws) or there is a question of the capacity of the parties to enter agreement due to misrepresenation, legislative, physical or mental:

Immigration matters - an applicant seeks to mediate with the immigration minister to revisit a decision to grant citizenship.  Ministers are highly unlikely to negotiate general government policy that requires the minister to consider test for good character, health condition, vary the minimum 'skills points' required to in the application. Arguably confidentiality provision would not come into effect due to public interest. Ultimately it would be a brave immigration minister that would face to face public backlash risk and ridicule in parliament by making any variation in the minimum threshold as National Interest would be at stake, create uncertainly and unwanted precedents - what ever that may be.

Religious Positions Can't be Mediated, but Positions From Religion Can - have a look at Donal O’Reardon's entry

The issue becomes more refined when we examine the question of the difference between a religious interpretation and something interpreted religiously.

Appealing an exam result through mediation - this could also be quite tough and it would be a brave examination board to risk reputation of an institution by possibly varying a result thus creating uncertainly in the standards achived...
I would be very surprised if the examination board attended a mediation if a candidate failed a multiple choice exam; however given that modern education is now 'competency based' there is a possibility that mediation could be used (I guess watch this space).

A party to a matter mediating with a Judge or Magistrate - again highly unlikely the learned Judges would even bother agreeing to attend in the first place (I'd like to know if anyone has though). This may include Chairman Kaga from Iron Chef...

This question really has tested my understanding of the scope of mediation and where the rubicon lies - I would be interested in your thoughts here ... I am suspecting the public interest test might apply here .... I thought about sentencing in criminal matters but there is Circle Sentencing...

So using the test above ....what type of matters just can't be mediated