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How do the parties initiate mediation?
Mediation can be either mandatory or voluntary. General principles applicable to each are below:
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.
Voluntary Mediation – Voluntary mediation is initiated pursuant to 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.
Discussion: Why do you think some jurisdictions, either through statute or court procedure, impose mandatory mediation? Do you think mandatory mediation is effective when the parties always retain the ability to refuse a settlement or resolution of the dispute?
Practice Question: Jonathan enters into a service contract with Melinda. Soon after entering into the agreement, the relationship begins to sour. Now Jonathan and Melinda do not want to continue doing business together and they have a dispute over the amount owed under the contract for services. The parties are considering undertaking mediation in an attempt to resolve the dispute. How would Jonathan and Melinda go about submitting their dispute to mediation?
- The parties in this situation can voluntarily initiate mediation by choosing a mediator. Generally, this will mean entering into a mediation agreement with each other and the mediator. This afterthought setting is referred to as post-dispute mediation agreement.
Nussbaum, Lydia, Mediation as Regulation: Expanding State Governance Over Private Disputes (October 12, 2015). Utah Law Review, 2016, Forthcoming; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2673269
Keet, Michaela, Informed Decision-Making in Judicial Mediation and the Assessment of Litigation Risk (May 2017). Ohio State Journal of Dispute Resolution, 2017. Available at SSRN: https://ssrn.com/abstract=3151885