Cautions in Using Mediation

Mediation does present some potential pitfalls that should be avoided. Mediation is not appropriate in every single case. Awareness and discussion of the possible disadvantages of mediation, along with careful consideration of its applicability, can help to ensure that the process is more productive.

1. One often cited is the ability of one side to gain sensitive information from the other. Even though mediation often involves information-sharing as a way to clear up misconceptions or to assess options, the information exchange can be damaging if it is one-sided. The mediator should ensure in advance that both parties are prepared to share information in good faith and establish clear guidelines for a mutual and fair exchange of information.
   
2. Another criticism of mediation is that less powerful participants could be overwhelmed by more powerful participants. An imbalance of power may be present in different ways. For example, one side may have financial resources to obtain legal counsel and other professional assistance, while the other side is forced to proceed without the benefit of professional expertise. Or it may be that one side could assert an advantage simply through superior social status or force of personality. It is critical that a mediator be trained to recognize and address signs of power imbalance. Parties should feel comfortable in conferring with the mediator at the first signs that the playing field is not level.
   
3. In response to the claims that mediation is a cheaper and faster means to resolve a dispute, critics point to the cost involved in mediation. Especially if multiple parties participate, or lawyers and other professionals attend, mediation may not be inexpensive. Some mediators also command substantial fees. The costs of mediation-including financial expenses, time and emotional toll-must be weighed against the anticipated benefits and other alternatives. Sometimes the longer-term value of preserving a relationship or agreeing on a course of action may exceed the short-term investment.
   
4. Generally, mediation is considered not to be appropriate where one or more of the parties seeks to establish legal precedent or to vindicate disputed legal rights. If a private or public interest is thought to better served by a decision of a court or other tribunal, then a mediated resolution likely should not be pursued.

Mediation is not a panacea or cure-all for conflict, and it cannot boast of a 100% success rate. A mediator has no "magic wand" to waive to banish a dispute. Mediation is only a tool. It is an opportunity for those who choose to try it. A mediation process often requires hard work, patience, candor and perseverance.