Is mediation always better than litigation?
No doubt, mediation works best where the two parties are roughly on a “level playing field” in terms of bargaining power and their assertiveness. If one party is more articulate, powerful, and controlling, and the other tends to be passive, malleable, and fearful, this does not always make a good profile for a mediated divorce. The mediator must be alert that mediation with parties who fit this pattern could result in duress and if a fair agreement does not appear possible, the mediator will screen the parties out or refer them to traditional litigation. On the other hand, it is the mediator’s duty to conduct a fair and impartial mediation, which sometimes includes educating parties to legal realities that are not always easy to learn, including their risks of going foward in traditional litigation.
