The concept of mediation has traceable origins to early civilizations. The modern practice of mediation that we have come to know in the United States emerged in the late 20th century.
It is, in my opinion, the most effective alternative to litigation. You bring in a trusted neutral to step in, hear both sides, and help people “work it out.” Back when disputes were less regulated, that approach often worked. Today, however, the landscape is different. Laws have grown more complex, workplace regulations are constantly evolving, and the stakes in disputes are higher than ever. In this environment, relying on a general mediator with little or no specific experience in the area of law involved can do more harm than good.
Legal Complexity Demands Expertise
Employment law, business disputes, healthcare, construction — each of these areas comes with its own maze of statutes, regulations, and case law. For instance, in California employment cases, mediators must navigate shifting wage-and-hour laws, CFRA/FMLA leave calculations, retaliation protections, and the constantly developing body of case law interpreting them. When mediators lack subject matter expertise, the process can grind to a halt because the mediator cannot see the risks clearly or can’t reality-test the parties’ positions with credibility.
The Risk of Oversimplification
A general mediator may try to treat all conflicts the same way, focusing only on emotions or communication breakdowns. While I 100% agree that relationship repair is an important part of mediation, it isn’t enough when dollar amounts, statutory penalties, or legal exposure are on the line. For example, an inexperienced mediator might downplay the importance of waiting time penalties or miscalculate damages in an unpaid overtime dispute. That oversimplification can lead to lopsided settlements that frustrate one or both sides — which can single handedly torpedo the resolution altogether.
Parties Expect Realistic Evaluation
Litigants and attorneys increasingly want mediators who understand not only how to facilitate dialogue but also what the likely outcomes look like if the case moves forward. A mediator lacking subject matter knowledge cannot credibly discuss litigation risk and loses the ability to use an evaluative approach during mediation. On the other hand, a mediator experienced in a particular field can leverage that knowledge to guide productive negotiation. When a mediator can point out that a jury recently awarded a sizable retaliation verdict on nearly identical facts, or that a new wage order directly impacts unpaid break claims, parties listen. That credibility often translates into real progress at the table. By using a generalist mediator, parties miss out on this opportunity to increase the likelihood of resolution.
Efficiency Matters
Mediation is meant to be faster and more cost-effective than trial. But a mediator who needs to be educated by the attorneys about basic legal issues wastes valuable session time. Instead of focusing on creative problem-solving, the day turns into a law seminar where the parties pay to educate the mediator on the law. Subject matter mediators come prepared — they know the statutes, the liabilities, the remedies — so they can move straight to identifying solutions. That efficiency doesn’t just save time; it saves clients money and increases the probability of settlement.
Why the Bar Has Been Raised
In today’s world of specialization, lawyers, doctors, and even contractors are expected to bring expertise to their practice. Mediation is no different and should be no different. Disputes are too sophisticated, the costs too high, and the consequences too great to settle for a one-size-fits-all neutral. Parties now expect mediators who bring both the process skills to manage conflict and the content knowledge to steer it effectively.
The Bottom Line
General mediators may still have a role in small community disputes or interpersonal conflicts. But when legal exposure, regulatory interpretation, or significant financial stakes are involved, subject matter expertise is no longer optional — it is essential. The best mediators today combine deep legal knowledge in their field with the ability to foster dialogue, build trust, and craft resolution. Without that, parties risk walking away with half-baked solutions that don’t withstand the real-world pressures of the law. So, skip the generalist mediators when you are trying to resolve a case that requires expertise, because those generalist mediators just aren’t cutting it anymore.
Why Mediation?
Mediations can be intimidating, especially if you have never participated in one before. They can also be anxiety invoking and scary to someone who has never participated in one before. This guide will help you understand how mediation works, to set you up for success. By being prepared, we can even the power dynamic so that all parties start on the same footing.
