How do the parties initiate mediation?

The process for initiating mediation is based on whether the mediation is mandatory or voluntary. Mandatory mediation is subject to statutory or judicial procedures. Voluntary mediation is carried out subject to the agreement between the parties.

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What is Mandatory Mediation?

Mandatory mediation is initiated pursuant to a court order or pursuant to the law (statute or regulation). 

For example, it is common for jurisdictions or courts to mandate that the parties to a family dispute, such as a divorce, work with a government-sanctioned mediator prior to initiating litigation. 

Remember, mediation does not involve a decision-maker. 

Mandatory mediation, therefore, simply requires that the parties begin the process. 

The parties are not forced to negotiate or arrive at a settlement. 

The hope is that requiring the parties to take part in mediation will help them to voluntarily work out the legal dispute without having to resort to litigation. 

What is Voluntary Mediation?

Voluntary mediation is initiated pursuant to an agreement among the parties. 

The parties may establish this agreement before a legal dispute arises or afterward. 

Pre-dispute mediation agreements are generally part of a separate contract between the parties. 

That is, the parties enter into any form of contract. 

A clause in the contract dictates that any legal dispute between the parties must be submitted to mediation before pursuing litigation or another dispute resolution method. 

A post-dispute mediation agreement generally arises pursuant to a separate agreement between the parties to employ a mediator to resolve the dispute. 

That is, the parties seeking to resolve a legal dispute recognize the value of pursuing mediation and voluntarily enlist the services of a mediator. 

People often confuse mandatory and voluntary mediation by assuming that mediation is mandatory because there is a mediation clause in a contract. 

Even though a contract contains a mediation clause, it was still a voluntary decision to enter into that contract. 

As such, this is voluntary mediation. Mandatory mediation only arises pursuant to law or judicial procedure.