All parties to a dispute must agree to mediate, so if one party refuses or isn't competent to participate, the case cannot be mediated. Mediation may also not be the best choice if:
- One of the parties wants to set a legal precedent that interprets or defines the law according to its own point of view. Legal precedents cannot be set in mediation because mediation agreements do not establish who is "right" or "wrong," and mediation decisions apply only to the parties involved in that particular mediation.
- A person believes he or she can win a huge verdict against a big company (or even a small company with a big bank account or plenty of insurance). Because of the tendency toward compromise in mediation, hitting a legal "jackpot" is more likely in a jury trial.
- One person feels intimidated or intellectually overwhelmed by the other, in which case it's hard to arrive at a true meeting of the minds. It's often possible, however, to remedy a "power imbalance" by arranging for the more vulnerable person to participate with an adviser -- perhaps a lawyer.