Disadvantages of Mediation: Everything You Need to Know
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.3 min read
2. Disadvantages of Mediation
Updated October 20, 2020
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.
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.