Requiring parties to participate in mediation before a lawsuit is becoming more common, but it has many parties questioning if mediation is mandatory and what the implication of making it mandatory is doing to the mediation process. Mediation was created as an alternative process to litigation to help the parties attempt to resolve their disputes in a voluntary and conciliatory way. However, as it has become mandatory, parties are often resistant to the idea and do not participate in ways that would help resolve the dispute before it becomes a full lawsuit and moves through litigation. Understanding what mediation is and when it can be mandatory will help illustrate how the process of making mediation mandatory in some instances may be affecting the process, both positively and negatively. This article will examine mandatory mediation and the unique challenges it presents to the alternative dispute resolution world.
Mediation is the most common and most familiar form of dispute resolution. Mediation is a formal negotiation process that involves the presence of a neutral third party called a mediator to oversee the process and help the parties move toward a settlement. Mediation gives control over the outcome to the parties while still providing the structure of a process and a designated time and place to negotiate. Mediation also ensures that the process is neutral and fair, keeping the parties focused on how to resolve the issues at hand—an important aspect that pure negotiation lacks. This process will usually be voluntary, meaning that the parties will need to agree to participate in mediation; however, courts may require the parties to participate in mediation if it could resolve the case. Mediation typically involves the following characteristics:
- Solutions: The mediator will encourage the parties to come up with solutions to the problem. Depending on the mediator’s style, they may suggest solutions, while other mediators will allow the parties to drive the discussions and solutions.
- Neutral: The mediator will be a third party who is neutral in the situation. This is important so that all the parties feel comfortable speaking freely and sharing their ideas. Neutrality means that they are not tied to any party in a way that may influence their thinking and that they have no stake in the problem presented or the solutions.
- Bargaining: The parties will eventually make their way to bargaining, either separately through the mediator or in a joint session. This will follow most of the steps of negotiation—offer, counteroffer, and agreement.
- Formal: The parties will hire a mediator who will lead them through the process of coming to a solution. There will be a set of rules to be followed and an agreement between the participants regarding the process.
Mediation is helpful for disputes where the structure is needed or where the parties are close to an agreement on their own but need guidance. It will often not work when the parties are influenced by outside parties or when the parties are not able to fully speak for themselves.
The popularity and success of mediation have encouraged many courts to implement mandatory mediation processes for certain types of disputes. Mandatory mediation means that instead of the mediation being a voluntary process that the parties choose, filing a case will trigger a requirement that the parties attend mediation before the case can go any further. This can help settle cases before they are filed or before too much litigation happens, which many courts welcome given the backup that many court calendars are facing. However, as will be discussed later, there are some disadvantages of forcing parties into mediation when they are not willing or ready. Mediation is most commonly mandatory in situations where the parties and the court will benefit from the parties deciding the case for themselves, with either based on knowledge of the dispute or the need for confidentiality. Mediation will often be mandatory in the following instances:
- Family Cases: The most common type of case that will include a mandatory mediation requirement is family law, especially divorce cases. In many states, the court will require that the parties participate in mediation before they will schedule a trial or move forward with the divorce case unless there are safety concerns that the parties will not be able to mediate well. This is often the case because the parties know their lives and the lives of their family the best and can often make the best decisions for their case.
- Small Claims: Another common type of case that may require mediation in small claims court. Small claims courts are court cases involving a case where a party is asking for recovery under a certain amount set by a statute within a state. While the court hearings for some of these cases may feel like a mediation, many courts will require that the parties attempt to resolve the case before they bring it to the court. Some courts will have mediators present at the calendars to ensure that all of the parties have a chance to attempt to settle before the parties present their case.
- Employment: For workplace disputes, some states will require that the employer and the employee attempt to resolve the dispute before the case is brought to court. This can be helpful for many employment disputes as the parties will hope to keep the case confidential because it is often personal information and can be somewhat emotional for the parties. Again, the parties will often know the best outcome for their dispute, so mediation can often resolve the dispute.
- Federal Cases: In many instances, federal courts will require that the cases go through mediation before they are set for trial. This is because many federal courts have overloaded calendars and may benefit from some of the disputes being resolved before the courts have to schedule and hear trials.
These are certainly not the only instances where the court may require that the parties participate in mediation before the case can move forward, but they are certainly some of the most commonly cited instances. Mandatory mediation is helpful in many cases, but it does have its drawbacks.
Benefits of Making Mediation Mandatory:
Installing a mandatory mediation program does have benefits for both the parties and the court system. Some of these benefits include:
- Time: Mediation, especially when it is successful, will give time back to the parties and the court. Mediation will often resolve a dispute long before the parties will have their case heard. This means that the dispute will be resolved more quickly and effectively than it would be if it went through the court system, and the parties will have more time to move forward after the dispute. Additionally, successful mediation will save the court time as it will remove cases from the overcrowded dockets.
- Confidentiality: While the case may have already been filed, the result will be confidential if the parties can reach an agreement. This helps the parties when the case involves personal information, and it helps the court to keep its records out of public scrutiny.
- Control: When the parties file a case, they lose control of their dispute and the way that it will be resolved. When the parties participate in mediation, they gain some of that control back. In mediation, the parties can take control over the outcome of the case and reach a result that benefits them both. They can also be creative with the way that they resolve the dispute in ways that the court could not grant.
- Exposure: When the court orders the parties to go to mediation, they gain exposure to both the process and the possibility of a resolution that the parties can agree on. Even if the parties do not resolve in mediation, they may be closer to a settlement than they would be had they not been able to have a conversation about a resolution early in the case.
These benefits are huge to both the parties and the court, but in many cases, they are only benefits if the process works and the parties reach a resolution in mediation.
Issues with Mandatory Mediation:
While requiring mediation early on in the case can be helpful for resolution if it works, there are issues with requiring the parties to participate in the process that is typically voluntary. Some of these issues include:
- Enforceability: In traditional mediation, the parties are committed to their non-binding agreement through the process of creating it together. However, when the parties are forced into mediation, it may require that the parties create a binding agreement for the court to enforce, which undermines the process of mediation as a whole. This issue will need to be addressed by the courts as they implement mediation.
- Lack of Good Faith: When the parties choose to participate in mediation, they are choosing to work toward a common goal with each other. This choice encourages the parties toward resolution. When the parties are forced to participate in mediation, they may not enter the process with the same commitment toward a common goal, and it may make the process less effective.
- Time: For some parties, participating in a mediation that they do not want to participate in will take the time that they do not want to use to work toward a resolution that they do not want to reach. For the cases that do not settle, mediation can feel like it took unnecessary time.
Mediation can be helpful for the parties that would like to participate in the process; however, when the parties are forced into mediation, it may not carry the same benefits, especially if the process is not successful. When mediation is implemented effectively, it can be a great benefit for all involved, but it does require the willing participation of the parties, which mandatory mediation often removes. Mandatory mediation may be necessary, but courts need to ensure that the parties are ready to commit to the process and are protected when they do.