I am a mediator, so it might seem odd for me to write a post about when mediation is not suitable. But I think honesty on this point is important — both because it is the right thing to do, and because a mediator who oversells the process does no one any favours.
The truth is that mediation is not appropriate for every dispute, and recognising the cases where it is unlikely to work is part of what makes the cases where it does work more effective.
When one party has no genuine interest in settling
Mediation is a voluntary process, and it requires a genuine willingness to engage. A party who attends mediation solely to gather information about the other side’s case, or who has already decided that they will not settle, is not engaging in good faith.
In practice, this is harder to assess than it sounds. Many parties arrive at mediation with a reluctance to settle that they later overcome. But there are cases where one party — often one with a strong legal position, or with a strategic interest in maintaining the dispute — is simply not there in good faith. In those cases, mediation is unlikely to produce a settlement.
When a binding legal precedent is needed
Some disputes need to be resolved by a court because the outcome will set a precedent that matters beyond the individual case. A landlord who wants a definitive ruling on the scope of a right of way that affects multiple tenants, or a business that needs a court judgment on the construction of a clause that appears in dozens of contracts, may have a legitimate reason to pursue litigation rather than settle.
Mediated settlements are private and create no precedent. If the purpose of the litigation is partly to establish a point of law, mediation may not serve that purpose.
When urgent interim relief is required
If a party needs an emergency injunction — to stop a trespass, to prevent the removal of assets, to restrain a party from acting — they need the court. Mediation does not provide interim relief, and the time needed to arrange a mediation may itself cause damage in urgent cases.
Once any urgent relief has been obtained, mediation may well be appropriate for the underlying dispute. But in the immediate crisis, the court is the right forum.
When there is a significant power imbalance or vulnerability
Mediation works best when both parties can negotiate on reasonably equal terms. Where there is a significant imbalance — for example, a well-resourced institutional party on one side and an unrepresented, vulnerable individual on the other — the process can be difficult to run fairly, and the outcome may not reflect a genuinely consensual agreement.
This does not mean mediation is never appropriate in cases involving individuals facing large organisations — it often works well. But it is a factor that a responsible mediator will consider, and in some cases it may be right to recommend that the weaker party takes independent legal advice before proceeding.
When the facts need to be established by a court
Some disputes turn on a factual question that the parties genuinely cannot agree on and that can only be determined by examining witnesses under cross-examination. If the central issue is whether a party made a particular representation, or whether a signature was forged, or whether something happened that one side denies, it may be that a court is the only way to establish the truth.
Mediation does not involve the investigation of facts — it takes the parties’ accounts as they are and helps them find an agreement despite the dispute. Where the establishment of a factual record is itself part of what one or both parties need, the court may be a better forum.
When the dispute involves serious wrongdoing that needs public accountability
If the dispute involves allegations of fraud, criminal conduct, or serious professional misconduct, there may be public interest reasons why a private settlement is not appropriate. A business that has been systematically defrauded may have legitimate reasons to pursue court proceedings rather than settle confidentially — both to achieve public accountability and to deter similar conduct.
What I do in those cases
When a dispute is referred to me that does not seem well-suited to mediation, I say so. That sometimes means recommending that the parties pursue litigation, at least until the circumstances change. It sometimes means suggesting a different form of ADR — adjudication in a construction dispute, for example, or arbitration where the parties want a binding determination but prefer a private forum.
My goal is a resolved dispute, not a mediation. If mediation is not the right tool, I would rather say so than take a fee for a process that was unlikely to work.
If you are unsure whether your dispute is suitable for mediation, an initial conversation is free and there is no obligation to proceed.