ABA Family Legal Guide

Family Law

3.4 Separation, Annulment, and Divorce

Mediation and Collaborative Law

What are the disadvantages of mediation?

Mediation can be a problem if one or both parties are withholding information. For example, if the purpose of mediation is to settle financial issues and one party is hiding assets or income, the other party might be better off with a lawyer who can vigorously investigate the matter. Mediators are usually good at exploring the parties' needs, goals, and possible solutions, but mediators do not have the legal resources of a lawyer to look for hidden information.

Another problem with mediation can arise if one party is very passive and likely to be bulldozed by the other. In that situation, the mediated agreement might be lopsided in favor of the stronger party. A good mediator, however, will see to it that a weaker party's needs are expressed and protected. Mediators should refuse to proceed with mediation if it looks as though one side will take improper advantage of the other.

Some professionals think that mediation is not appropriate if the case involves domestic violence. One concern is that mediation will just provide a forum in which the abuser can harm the victim again. Another concern is that victims of physical abuse are not able to adequately express and protect their own interests. However, other professionals believe that disputes in families with a history of domestic violence can still be mediated, particularly if the abused party is not significantly intimidated by the other party.

A final potential drawback to mediation is that if mediation does not succeed, the parties may have wasted time and money on the process and still face the expenses of a trial.