Mediation is an interactive, structured process that allows an impartial third party to provide assistance between disputing parties. The goal of this effort is to resolve conflicts through the use of specialized negotiation and communication techniques. Each participant receives encouragement to actively participate in the process to focus on the rights, needs, and interests of everyone involved. This set of approaches works to create an optimal outcome in the situation that allows justice to prevail.
Mediation is a term that broadly refers to any situation where a third-party provider offers others to reach an agreement. The difference between this option and others is that it provides a specific timetable and unique dynamics that ordinary negotiation lacks while staying out of the civil judicial system.
The processes of mediation in the United States are private and confidential. Some agreements are potentially enforceable by the law.
If you have an issue with another party that requires a resolution, then the advantages and disadvantages of mediation are worth taking into consideration.
List of the Advantages of Mediation
1. There are cost advantages to mediation that are worth considering.
Although a mediator often charges a fee that is comparable to that of an attorney, the process that all parties follow takes much less time. That means you don’t need to worry about the expense of moving a case through the standard legal channels. Mediation can usually achieve a successful outcome in a matter of hours or days, while a case in the hands of the judicial system could take months or years to reach a judgment. This time savings creates a significant reduction in hourly fees and court costs.
2. Mediation provides confidentiality throughout the negotiation process.
Court hearings in the United States are a matter of public record. Mediation is not. It remains a strictly confidential process. No one but the individuals or parties connected to the dispute, along with the mediator, know what is happening with a case. This advantage of mediation has such an importance to it that in most situations, the legal system cannot even force mediators to testify in court as to the progress or processes that happen.
It is not unusual for mediators to destroy their notes or delete files once a negotiation gets reached. Unless child abuse, threatened criminal acts, or other incidents that invoke mandatory reporting occur, mediators remain neutral and impartial.
3. There is more control over the eventual resolution.
If a dispute lands in court, then both parties agree to let a judge or jury make a decision on their behalf. When everyone uses mediation instead, then there is more control over the eventual resolution. That means each group has access to more solutions that can emerge from the settlement process that wouldn’t be offered by a judge or jury. This advantage is the reason why this option is more likely to produce results that are mutually agreeable for everyone instead of creating a one-sided outcome.
4. Mediation still requires compliance.
The compliance rate for a mediated agreement is usually high. This benefit occurs because the attained results from all parties happen because everyone is willing to work together. It’s an advantage that reduces costs even further in most circumstances because there isn’t the need to enforce legal compliance with a settlement.
You don’t lose the benefit of compliance with this structure. Mediated agreements are entirely enforceable in a court of law if one of the parties decides not to fulfill their obligations.
5. It provides a space for mutuality.
When parties enter into mediation, then they are typically ready to find a settlement or resolution to their dispute. Although this isn’t always the case, having one group completely entrenched or convinced that they’re right and the other group is wrong means mediation is probably not the right choice to make anyway. The mere fact that you have people who are willing to meet is an indication that they’re ready to move their position at least a little.
That means each party is more amenable to understanding the perspective of the other side. Mediators can use that approach to begin working on the underlying reasons a dispute occurs in the first place. It is such a potent advantage of mediation that it can even preserve the relationship that the parties have with each other.
6. Mediators provide support in challenging situations.
Mediators receive specific training and development that enables them to manage challenging situations with ease. The goal of this individual or third-party group is to act as a neutral facilitator. Each one guides the parties through the process to help them think of solutions that might be hard to find when someone is entrenched in their side of the issue only. This process works to broaden the range of possible solutions so that an amenable outcome becomes available to each side.
7. You still keep the right to pursue litigation with mediation.
If you don’t like the outcome of the mediation effort or it becomes impossible to reach an agreement through this process, then you can always pursue litigation. An agreement is enforceable when both parties agree to it with the help of the third-party mediator. If you decide that the settlement is too far away from where you’re willing to be, then you can drop the effort and go to court instead.
Without your consent, the agreement would have no effect on the outcome of the case.
8. Mediation is a relatively simple process to follow.
You don’t need to worry about any evidentiary rules or complicated procedural guidelines to follow when you decide to use mediation. A general rule of fairness and respect applies to the negotiation process, but that’s about the only issue of concern. The maximum penalty that a party can impose on another is to walk away from the process to take their chances in court.
Even if you reach a settlement agreement with the other side, that doesn’t mean you need to drop the dispute entirely. It may be possible to file a lawsuit in the future if you find that the agreement doesn’t satisfy your needs.
List of the Disadvantages of Mediation
1. People cannot be compelled to participate in mediation.
Unless a court order requires individuals to participate in a mediation effort, there is no way to compel someone to be actively engaged in this process. That makes it a pointless exercise since there’s only one set of circumstances that receives consideration in this situation. If each party stays entrenches in a singular position and refuses to negotiate, then a similar outcome occurs from this effort.
It can take several efforts and mediation sessions for the parties involved to reach some kind of agreement. This effort will only be successful if everyone is willing to reach a resolution.
2. A legal precedent requires establishment for complex procedures.
Ratification and review provide safeguards for all parties in mediation. It also offers an opportunity for individuals to undermine the results. When external bodies must ratify the agreement that comes about from this process, then there is the potential that the resolution gets rejected. Mediation often requires legal precedents to get established as part of the process so that the outcomes are enforcement. If complex procedures must be followed after-the-fact, then these guidelines must be put into place as part of the arrangement.
3. The information from mediation sessions isn’t made public.
Having your case go public can sometimes be to your advantage. If you have a justifiable stance or a righteous position that you support, then media coverage or community awareness can put pressure on the other party to reach a settlement that’s more in your favor. If an employee feels like they received unfair treatment from their employer, then having their story known by more people could prevent that business from acting the same way with other people in the future.
4. The outcome of mediation can depend on the skills of the mediator.
It is possible to end up with a mediator who is just starting their career. Everyone needs to take their first case, after all. That means both parties might find themselves in a situation where the agreement draft ends up being incomplete. There can also be times when the mediator went through a similar dispute and has a definite bias in favor of one party.
The best way to avoid this potential disadvantage is to seek references from your legal representation, trusted associates, and family members. Then ask specific questions about that person’s experience to determine if they can offer a fair perspective during the negotiation.
5. You can be bound to an unfavorable decision.
If your case goes to court, then you are bound by the findings of an arbitrator or a judge. Mediation agreements are also enforceable if you give consent to them. That means you could find yourself bound to an unfavorable decision, especially if a majority of your peers agree to the settlement without your consent. This outcome can be problematic in some situations because it can create individual responsibilities for compliance that were never agreed to by some people.
6. Mediation lacks the constitutional and procedural guarantees guaranteed by the courts.
The lack of formality during mediation can act as a benefit, but it can also be a detriment. Unless a contract comes about because of this process, then the protections for the process are few at the federal and state levels. You cannot set a legal precedent though this effort as you could with a legal case, which means disparate levels of sophistication or power can sometimes put one party in an unfavorable position immediately.
That means you could find yourself going through the same mediation process repetitively because no precedents get set by the agreements reached. It might be fast and effective in some situations, but this process can also be difficult to uphold in some situations.
7. No formal discovery process is part of the mediation effort.
If one of the parties in a dispute cannot entirely address a case without first receiving information from the other side, then mediation doesn’t provide a way to compel disclosure. The group seeking disclosure is forced to rely on the good faith of the other side, and that might not be good enough to make a difference in the case. That’s why some issues are better off being decided in court instead of at the negotiating table.
8. An unsuccessful mediation attempt can make it more challenging to win in court.
When a mediation effort is unsuccessful for one of the parties, then it can make their course case more difficult to win if a decision to pursue litigation occurs. It is not unusual for the best evidence to get used during the negotiation process to reach an agreement that’s in their favor. That means the other side in the dispute has an idea of what will get used during a trial.
Mediators are ultimately limited in what they can provide for services in this process. Their expertise can lead to a negotiated agreement, but this standardized process cannot force anyone to do anything.
Mediation is a useful tool when two groups are willing to negotiate, but they need a little help to find a place of settlement or compromise. Having a neutral, outside perspective for this process can help everyone to find a meaningful solution at a price that is often less than what is necessary when navigating the legal system. It also provides convenience because many agreements can get reached within a single session of only a few hours
When mediation is not successful, then It is often because one or both parties is not honestly willing to move their position in a dispute. If the mediator must make a decision through arbitration, then the outcome is similar to that of the court.
The advantages and disadvantages of mediation are different for each situation. If you have a dispute that you’d like to get settled, then this is one option to consider. When you are certain that your position is correct and you don’t want to negotiate, then other options are going to provide a better outcome.
Blog Post Author Credentials
Louise Gaille is the author of this post. She received her B.A. in Economics from the University of Washington. In addition to being a seasoned writer, Louise has almost a decade of experience in Banking and Finance. If you have any suggestions on how to make this post better, then go here to contact our team.