What Are the Disadvantages of Mediation?

Mediation can be a valuable way to resolve legal issues out of court. This is especially true in cases where emotions run high, such as divorce. However, mediation has its disadvantages, which are often overlooked.

This article will discuss mediation generally. It will then go on to elaborate on the disadvantages of mediation.

What Is Mediation?

Mediation is a process in which parties meet out of court to resolve their legal dispute with the help of a neutral third party. The neutral third party is called a mediator. Mediation is a form of alternative dispute resolution (ADR). Arbitration is another common form of ADR. However, in arbitration, the neutral third party issues a ruling like a judge in a court case. Alternative dispute resolution can provide a substitute for going to court.

In mediation, the parties meet with the mediator at a neutral location or at court. The mediator serves as a facilitator, setting up a structured conversation between the parties. The mediator helps the parties identify the problems that need resolution. They can then organize and frame issues for discussion and possible resolution. If the parties reach an agreement, the mediator can assist the parties in writing up the agreement (sometimes for adoption by the court). The mediator does not issue a ruling. The parties control whether they reach an agreement or not.

Mediation has advantages over traditional litigation. Generally speaking, compared to litigation, mediation is:

• Faster
• Easier
• More cost-effective

Another advantage of mediation is that, depending on the type of case, it can provide a more complete solution to a legal issue than going through formal court proceedings.

What Are the Disadvantages of Mediation?

Mediation does not work in all situations. Most attorneys and court officers know this. They may make efforts to screen out cases from mediation when a party is so entrenched in a position that they will not compromise. The disadvantages of mediation often stem from the mediator's limited role and the intent and the abilities of the parties to focus on resolution.

The Mediator's Limited Role

A mediator is not a judge. In a courtroom setting, lawyers have many tools to get people to testify and produce evidence unavailable to mediators. The judge can rule on evidence disputes. This helps get at the truth and provides accurate information to all sides. In contrast, mediation sessions don't have a formal discovery process. The mediator does not have the ability to force each side to produce documents, other than to delay or end the mediation.

Much of the courtroom procedure is designed to keep things fair to both parties. The mediation process typically has no formal rules. The mediator will provide protocols on how the session will go forward, yet they have limited ability to control the behavior of the parties. This means that if one party is timid and the opposing party is loud and aggressive, the concerns of both parties may not come out in a balanced way. Mediators have some skills that may help restore balance, but there is a limit to what they can do.

Mediators cannot compel a party to attend mediation or threaten contempt proceedings for an uncooperative party. They must work with what the parties bring to them.

Sometimes the mediator's experience is insufficient to the task at hand. If an unskilled mediator is employed, the process may stall or go off track. The outcome of mediation might be unsatisfactory to one or both parties.

The Parties' Capacity to Negotiate and Settle

At mediation, a party must be their own advocate. Not all parties come prepared for mediation and may not present issues well. They may go down "rabbit holes." A skilled mediator will try to keep parties on track.

A party that does not seek a resolution in good faith can prevent a meaningful settlement. For mediation to succeed, both parties need to have a good faith interest in reaching a resolution to their dispute. The parties might spend a significant amount of money before discovering their dispute can't be resolved through mediation.

A power imbalance between the parties may also sidetrack negotiations or make them appear one-sided. Mediation is commonly used in family law cases. Some experts in abusive relationships don't believe mediation is appropriate in cases where there has been domestic violence. Some courts will not permit it. The mediator must be on guard that the mediation does not become another way for the abuser to harm a victim. Depending on the nature of the victim's injuries or the parties' past history, a victim might be unable to strongly assert their positions in the informal mediation setting.

Even if the parties reach a settlement agreement, a party may withdraw from it prior to its approval by the court. Oftentimes, parties leave mediation without signing anything. The mediator or an attorney may write up the settlement agreement after the session. One of the parties might later decide they aren't content with the mediation agreement. If they do not sign off, then the parties must return to litigation.

Mediation may also be unsuccessful. If the parties reach no substantive agreements, then no resolution will follow. In that situation, the parties will need to file (or return to) a lawsuit and go through the time-consuming and expensive process of a court case after wasting time and money in mediation. Legal fees will often be higher in those instances.

You Don't Have To Go Through This Alone. Get Legal Help.

Meeting with a lawyer can help you better understand the pros and cons of mediation. Visit our attorney directory to find a lawyer near you who can offer legal advice or legal representation.