What is Mandatory Mediation?

Mandatory mediation is a form of alternative dispute resolution that requires participants to go through a mediation process before, or in lieu of, court proceedings. Unlike voluntary mediation, mandatory mediation may sometimes be required by an existing contract or ordered by a judge. Proponents feel that mandatory mediation can help reduce the court case load, allowing parties in a suit time to work out their issues with assistance instead of relying on a judge to settle the issue. In cases where parties are truly contrary, however, mandatory mediation may turn into nothing more than a staring match.

Since mediation is generally far less expensive than court, some contracts have a clause that requires mediation or another form of alternative dispute resolution, such as arbitration, for all disputes. Since mediation does not result in a legally binding decision, contracts that mandate the process usually make it a precursor to a traditional court trial. Mandatory arbitration, on the other hand, is usually placed in a contract as an alternative to court, since it results in a binding decision. Contracts that may have mandated mediation include prenuptial agreements, service contracts, and landlord-tenant contracts.

In some regions, the court may reserve the right to order mediation in certain cases. Family law cases, such as divorce and custody issues, as well as debt problems and simple civil suits, are sometimes targets for court-ordered mediation. The process may be ordered if a judge decides it will be more efficient and less costly for the participants to attempt to reach a mutual decision. For this type of mediation to work, the judge must generally assess whether the parties are capable of acting in good faith to reach a solution.

There are some benefits of mediation, whether mandatory or self-chosen. First, the process is guided by a trained, neutral third party that can help both sides work to find an equitable agreement. The mediator can help keep discussions on target, which may be very useful in contentious cases or situations where there are high emotions. Additionally, mandatory mediation ensures greater privacy than a public trial, since mediation sessions are usually conducted in strict confidence. This can prevent the public airing of dirty laundry in court, which may be very important in cases where personal or professional reputation is at stake.

With some courts turning to mandatory mediation as a means of streamlining the legal process, one major question that has been raised is whether the decisions made in mediation are enforceable. If parties craft a solution in mediation, the judge may rely on them to enforce the terms, rather than making a final court judgment. Some legal scholars suggest that the agreement settlement, while not legally binding, should be made admissible as evidence in a future lawsuit should one party refuse to meet the terms of the agreement.