Court ordered mediation – All you need to know

Learning all you need to know about a court-ordered mediation can feel like a daunting task.  When a court orders the parties in a family law case to mediation, there are often many questions on what the process will look like and whether the parties will be punished for failing to settle in mediation.  Family law often already involves high emotions, and mediation can feel like a difficult step to take in such a case.  However, mediation can often produce results that help both parties feel as if they were heard and understood and can increase the ability of the parties to collaborate in the future.  Mediation also allows the parties to have control over the outcome of their dispute and not leave it up to a judge.  Mediation can often be incredibly beneficial to the case, and a judge may see the potential the mediation presents if they order it.  This article seeks to explain what court-ordered mediation is and how the process differs from traditional voluntary mediation.  

Mediation 

Mediation is a process where the parties meet with a neutral third party called a mediator who will work with the parties on their dispute to attempt to settle.  The goal of mediation is to encourage the parties to work collaboratively to achieve a creative solution to the problems they have presented.  Traditionally, this is a voluntary process, and in family court matters, it often takes place near the beginning of a case—occasionally even before the case has been filed.  However, a court may see that the parties to a dispute may be able to settle some or all of the dispute and that they should have the opportunity to do so with a mediator.  The third-party allows the negotiation to proceed fairly and neutrally, and the process is not binding, so if the parties cannot agree on a solution, the court case will resume.  

Court-Ordered Mediation v. Voluntary Mediation

In many states, family law cases will be required to attempt mediation or settlement before the case can move forward in the trial.  In other states, the courts have the discretion to order mediation when they believe the parties may benefit from the process.  In either case, the parties will typically be excused from the obligation if they have already participated in mediation or if safety concerns with the parties working together are present.  There are several differences between mediation that is ordered by the court and mediation that the parties choose to participate in.  These differences include: 

  • Voluntariness: This is probably the most obvious of the differences, but court-order mediation is not voluntary.  Once a party has been notified that the court has ordered mediation, they are required to go participate.  Voluntary mediation will only happen when the parties have agreed to participate and there are no penalties for choosing not to.  
  • Control: In a similar vein, because a court-ordered mediation will be ordered and set up by the court, the parties may lose some of the flexibility that they would typically have when participating in voluntary mediation.  They will not be able to choose the time, date, location, or mediator.  This places the mediation process further outside the control of the parties.  
  • Time Requirements: In some states, the court can order that the parties attempt to participate in mediation for at least a set time.  These requirements are usually to discourage the parties from showing up to mediation for a few minutes before calling it off.  It also encourages the parties to put effort into the time they have.  However, involuntary mediation, the parties can stop the mediation and walk away whenever they like.  
  • Timing: Voluntary mediation will often happen early on in the case, sometimes even before the case is filed.  Court-ordered mediation will only happen once a case is filed.  The exact timing of the order may vary based on local laws, but it will typically be later in the case.  

While court-ordered mediation does have some distinct differences, the process of mediation will look the same whether the mediation is court-ordered or voluntary.  

What to Expect in Court-Ordered Mediation

Because the process of mediation will often stay the same between voluntary and court-ordered mediation, the basics of mediation will still apply to court-ordered mediation.  The process follows a similar pattern, although it may change slightly depending on a mediator’s style.  Mediation typically moves through the following steps: 

  1. Introductions: The mediation will begin with the parties and the mediator introducing themselves to each other.  The mediator will also often give the parties an overview of how the process will run and establish any ground rules that may be needed for the day.  
  2. Opening Statements: During this section, the parties will have the chance to present their case to the mediator and the other party and explain what they would like and why they would like it. This is typically the only time that the parties will have to give their version of the situation to the other party.  
  3. Caucuses: The mediator will often separate the parties after the opening statements and participate in individual meetings with each of the parties to gain a deeper understanding of the case from each side.  Whatever either party tells the mediator in these meetings will not be shared with the other party without permission.  
  4. Bargaining: Eventually, the parties will begin to bargain with each other for their version of the settlement. In family law cases, this can mean that the parties are discussing how to split up parenting time, assets, money, and other parts of their lives.  The mediator may have the parties work together in the same room, or they may shuttle the offers back and forth.  
  5. Agreement: The mediation will end with an agreement between the parties.  This can either be an agreement to settle the case, or it can be an agreement that the parties cannot settle the case at this time and would like to move forward with litigation.  

Conclusion

Mediation is an incredibly helpful tool in cases where the parties need to agree on aspects of the case.  Mediation is usually voluntary, but occasionally courts will order mediation, especially in family law cases.  Mediation can help the parties work together to create a solution to their problems and find a way to move forward together.  Mediation gives the parties a sense of agency over their futures and can help them make better decisions together in the future.  While court-ordered mediation may feel intimidating, know that the best interests of the parties are at the heart of the matter. Mediation gives the parties to settle their dispute amicably and move forward with their lives.  

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