In legal terms, ‘mediation’ is a type of alternative dispute resolution that can help resolve conflicts and avoid litigation. Parties to a lawsuit or domestic matter (such as a divorce or a child custody case) can choose to go to mediation to work out an agreement. In some cases, however, a court may direct the litigants to attend one or more sessions with an approved mediator. This is called court-ordered mediation.
How to Choose a Mediator
Many state and local courts maintain lists of ‘certified mediators‘ and provide these to litigants ordered to undergo mediation. These individuals have met the training and experience requirements dictated by state law or the court’s rules. Usually, parties choose their own mediator; if they can’t agree, the court may appoint one.
Some mediators specialize in handling certain types of legal disputes, such as court-ordered custody mediations or appellate cases. Others are available for all kinds of matters. Many mediators are retired judges or attorneys who have extensive practice experience in their area of law.
How to Prepare for Court-Ordered Mediation
Once a mediator has been chosen, the parties schedule a date, time, and location to meet. Frequently, mediators request that the parties send them an advance copy of any evidence they plan to present and a summary of their argument. Doing so helps everyone better prepare for the mediation. At the appointed time, each person presents their position and any supporting documents or evidence.
The mediator then works with the parties to resolve their outstanding issues. This may be done with both parties together and in one-on-one sessions.
In the case of a child custody mediation, for example, the mediator may meet with each parent separately to discuss their wishes and concerns about a custody schedule. Then, they may all discuss how they can craft an arrangement that works well for everyone in the family. The mediator might suggest some solutions that the parents aren’t aware of or didn’t consider, such as exchanging the children at a restaurant halfway between their homes or using videoconferencing for a parent to attend events.
Who Pays for Court-Ordered Mediation?
The parties are usually responsible for paying the costs of a mediation, even if it is ordered by the court. Usually, the cost is divided equally between them. If the cost is a significant hardship and the parties are unable to pay, the court may arrange for a reduced or no-fee mediation.
Why Use Mediation for Dispute Resolution?
Get an Experienced Outside Perspective
Engaging a neutral third-party mediator can help people in a high-conflict, emotional situation gain a fresh perspective. They may find that they agree on more issues than they think and be more open to negotiating a compromise for areas that remain in dispute.
A skilled mediator can draw on past experiences to suggest creative solutions for seemingly impossible problems. They can also help encourage each person to listen to the other’s point of view, keep an open mind, and be more flexible with their position.
Avoid the Stress and Pressure of the Court System
Court-ordered mediation helps relieve some of the pressure on an overburdened legal system. In many cases, especially family law cases, the parties have significantly different interests – each of which needs to be carefully examined, addressed, and considered.
Proceedings can get emotional and be stressful for everyone involved. Mediation allows both parties to share their perspectives and concerns about a given dispute without the pressure of a full docket of pending cases.
Maintain Your Privacy
Unlike a trial where sessions are open to the public or even recorded, one of the benefits of mediation is that they are private and (usually) confidential. What you say in the session cannot be used against you in court or other proceedings. (An important exception, however, is that a mediator may have a duty to report allegations such as child abuse to the proper authorities.)
Resolve Your Case on Your Schedule
Going to mediation can also be more comfortable and convenient than going to court. Most mediations are held in private offices, and they can be scheduled at a time convenient for both parties. You may even be able to do them over the phone or using teleconference software (like Zoom or Google Meet).
By contrast, court hearings and trials are held on a schedule that is fixed and set by the court. Litigants may have long periods of wait time while the judge hears other matters. Few courts permit children or offer childcare services, and they are often far from the parties’ residences.
Is Court-Ordered Mediation Mandatory and Binding?
If a judge orders the parties to a lawsuit to attend mediation, they must obey and attempt the process in ‘good faith.’ As with any other judicial order, a party that fails to comply with a court order directing mediation can be held in ‘contempt of court.’ Penalties for contempt can include fines and jail time.
Some states and larger cities require certain kinds of legal matters to go to mediation before a court hears them. For example, the Circuit Court of Cook County, Illinois, requires all child custody cases to attempt mediation unless parents already agree on a parenting plan. The court will not schedule a hearing or trial until this is done. (Notably, a judge can overrule this requirement when appropriate, such as in cases involving violence.)
The mediator does not make a ruling or enter a judgment. Instead, they try to assist the parties in negotiating and memorializing an agreement among themselves. If this is successful, the parties can alert the court and have their case resolved. If they can’t agree, the parties proceed with litigation, asking a judge to schedule a hearing or trial to settle their disputes.
What If Mediation Doesn’t Work?
In many cases, mediation can be faster, cheaper, and more effective than having your case decided by a court. Court-ordered mediation can’t resolve all cases, however. If you have completed this process and still need to go to court, you should consider meeting with an attorney.