"Who shouldn’t use mediation?" by Brahm Siegel

Let's talk about some of the advantages and disadvantages of mediation. It's a very popular tool that some people like to use for resolving their disputes. Clearly, one of the biggest advantages to mediation is that it's consensual, so no one can force you into mediation, and presumably, people who choose to use it want to use it. Another advantage of mediation is that lawyers are generally not present, especially when parenting issues are discussed. Lawyers are usually in the background. The final part about mediation that people like is that you get to choose the person who is going to help you resolve your dispute.

Now, there are some disadvantages too. The biggest one is that a mediator has no power over you, so you might like what a mediator says or recommends to your spouse, but that doesn't mean that a mediator can implement those decisions. A mediator is not a judge. I would think that another disadvantage of mediation is that a mediator is not going to give you legal advice. A mediator may give you options or make suggestions, but a mediator's job is simply to get you to an agreement. So what happens sometimes is that, when we are sitting on the lawyer end of things and a client brings us an agreement that has been drafted during a mediation session, it may not be a good move legally for the client. Legally, sometimes the advice that we may give may contradict or be inconsistent with what he or she wanted to reach in mediation. And clients sometimes think that if they had known the legal advice at the outset, they would have entered into a different agreement.

So the bottom line is for mediation that it's always good to have a lawyer in the background if you're going to use a mediator as well, so you can have the legal advice as you go along.

In terms of what sort of people should or shouldn't be in mediation, that's an easy question. For people who should be in mediation, they're generally the following types of personalities. They're people who can work well with each other and who can understand the other person's needs. They're people who can empathize with the other party's position and know there will be some compromise involved. On the other side, people who are not well suited to mediation are those who display a lot of vengeful behaviour. People who just want to be in each other's face in order to get something from the other side without understanding the need to compromise. There are cases where people don't want to make full disclosure or act in good faith. And finally, cases where there has been a lot of domestic violence - where one partner has seriously abused the other - are usually not well suited for mediation, because of the power imbalances and the unequalled vision of bargaining power that exists in the room. It makes it a very hard job for the mediator to provide a fair and even-balanced atmosphere.