Key Takeaways

  • Mediation lacks formal legal procedures, which may disadvantage less-prepared parties.
  • Power imbalances between parties can result in unfair outcomes.
  • The non-binding nature of mediation can lead to unresolved disputes or enforcement issues.
  • There is no discovery phase in mediation, making it harder to obtain necessary evidence.
  • Poor preparation, unclear goals, or aggressive negotiation tactics can derail the process.
  • Some disputes are simply not suited for mediation—particularly those involving criminal conduct, abuse, or the need to set legal precedent.
  • Mediation may delay more effective legal resolutions if it ultimately fails.

One of the main disadvantages of mediation is a lack of formal rules, which can make it difficult for two disagreeing parties to reach a compromise.

What is Mediation?

If you're involved in a legal issue that you would prefer to resolve outside of a courtroom, you could use mediation. During mediation, two people who are involved in a legal dispute will meet and attempt to settle a disagreement with the help of a mediator, which is a neutral third party.

With mediation, only the parties involved will be responsible for resolving the issue. No outside party will make any decisions. Mediators are not responsible for making a final decision. Instead, mediators help to outline the issue and facilitate communication so that the parties hopefully can agree to a mutually beneficial settlement.

Mediation is an alternative solution for resolving legal disputes and allows people to avoid going to court. This process is particularly beneficial in emotional cases, such as divorces. If you're interested in resolving a legal issue through mediation, you should be aware that there are both disadvantages and advantages to this process. You should be sure that the advantages outweigh the disadvantages before engaging in mediation.

Mediation, while not a formal, will usually follow a few basic steps:

  • A preliminary meeting or phone call.
  • A joint meeting with both parties.
  • Sessions where the mediator meets with each party individually.
  • An evaluation by the mediator.
  • An agreement that ends the dispute.

Mediation can be used to resolve a variety of legal issues:

  • Contract disputes.
  • Contesting a will.
  • Disagreements between partners in a business.
  • Divorces and child custody arrangements.

Disadvantages of Mediation

Mediation has several disadvantages of which you should be aware of. First and foremost, it is very rare that the complete truth of an issue is revealed during mediation. On the other hand, in a court case, attorneys will have the ability to procure evidence and call witnesses, which is not available in mediation. In addition, courts are set up so that both parties in a case will be treated fairly. While this is also a goal in mediation, equitable treatment can be hard to achieve in certain circumstances.

Another disadvantage of mediation is that there are no formal rules for the process. If you don't employ a skilled mediator, this lack of formal rules can often result in an impasse. Mediation also relies on the cooperation of both parties. If the parties involved in mediation aren't able to compromise, the process can end in failure.

One of the biggest disadvantages of mediation is that it can be very difficult to make sure that the settlement is fair to both parties. If one party has access to more resources or is savvier about the mediation process, they may be able to get the other party to agree to a settlement that isn't in their best interests.

It's very common for mediation to end without the parties successfully reaching a settlement agreement. For instance, the parties might spend a tremendous amount of money, effort, and time only to find that resolving a dispute through mediation is impossible and that they will need to go to court after all.

When mediation is unsuccessful, it can make a court case more difficult, as one of the parties may have already used their best evidence, meaning the other party will know what to expect during the trial. In order to protect their privacy, the parties may decide to keep their sessions private so that the information discussed does not become public knowledge.

Mediators, while they have some ability to bring balance to these sessions, are limited in how much they can actually do. Unlike state and federal courts, there are no constitutional protections available in mediation. Setting legal precedent in mediation isn't possible.

In mediation, there is no discovery process like there would be in a normal court case. If a party relies on information from the other party to help prove their claim, there is no formal method to acquire this information during mediation.

Even if the parties reach a settlement agreement, the dispute may not be over. One party may decide at a later date that they aren't actually satisfied with the agreement and may file a lawsuit.

Common Mistakes That Undermine Mediation

Even when mediation is appropriate, poor execution can significantly affect outcomes. Some common errors include:

  • Lack of preparation: Entering mediation without a clear understanding of legal rights and desired outcomes can lead to unfavorable settlements.
  • Overconfidence or rigidity: Refusing to budge from initial positions often results in a breakdown of negotiations.
  • Using mediation to delay: Some parties may agree to mediation solely to stall legal proceedings, with no intention of compromise.
  • Emotional reactions: Particularly in family or business disputes, unchecked emotions can derail otherwise productive sessions.

A skilled attorney can help prepare clients for mediation, set realistic expectations, and guide them toward a resolution that aligns with their legal and personal interests. You can find an experienced attorney on UpCounsel for support throughout the mediation process.

Situations Where Mediation May Be Inappropriate

Not every dispute is suitable for mediation. In fact, some scenarios are better handled through litigation or another formal process, including:

  • Cases involving criminal activity or domestic abuse, where public safety is at stake.
  • Matters requiring urgent injunctive relief or immediate legal enforcement.
  • Disputes where one party seeks to establish a legal precedent.
  • Situations where confidentiality cannot be maintained, and public accountability is necessary.

In such instances, attempting mediation may only serve to delay more effective legal action.

Lack of Formal Discovery and Evidence Gathering

Unlike court proceedings, mediation typically does not include a discovery process. This can severely limit a party's ability to obtain documents, depositions, or expert testimony necessary to build a solid case. If a dispute hinges on factual discrepancies or concealed information, mediation may be inadequate for surfacing the truth. As a result, a party might settle under incomplete or misleading circumstances.

No Legal Precedent or Binding Resolution

Mediation does not establish legal precedent, which can be problematic for cases that raise significant or novel legal issues. Additionally, because mediation is a non-binding process unless a settlement is formally documented, there's a risk that one party might back out of the agreement or simply fail to follow through. This can force the other party to pursue litigation anyway, undermining the time and cost-saving benefits mediation was meant to offer.

Power Imbalances and Lack of Legal Safeguards

One of the more serious disadvantages of mediation is the potential for power imbalances to influence the outcome. In traditional litigation, legal safeguards like discovery rules, cross-examination, and judicial oversight help ensure fairness. Mediation lacks these mechanisms, leaving room for manipulation, especially if one party is more aggressive, better informed, or has access to better resources. Without a judge or jury to enforce equity, vulnerable parties may be pressured into settlements that are not in their best interest.

Frequently Asked Questions

1. Is mediation legally binding? Mediation is not inherently binding. A settlement only becomes enforceable once both parties sign a written agreement.

2. Can mediation be used in all types of disputes? No. Mediation is generally unsuitable for criminal matters, urgent legal issues, or cases that require public accountability or legal precedent.

3. What happens if one party doesn’t follow the mediation agreement? The other party may need to file a lawsuit to enforce the agreement, which can negate the time and cost benefits of mediation.

4. Are attorneys allowed in mediation? Yes, and having legal counsel is advisable to ensure that your rights are protected and any agreements are fair and legally sound.

5. What’s the biggest disadvantage of mediation? One major disadvantage of mediation is the lack of formal procedures, which can result in unfair outcomes, especially when power imbalances exist or evidence is withheld.

If you need help understanding the disadvantages of mediation, you can post your legal needs on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.