Parties to a dispute may find themselves in a mediation in a variety of ways. Generally speaking there are three possible roads which may lead disputants to the mediation process. Those roads, in no particular order, are as follows:
The parties to a dispute may have a written contract which may contain an alternative dispute resolution (commonly referred to as ADR) provision requiring the parties to resolve their disputes through a non-litigated process, including mediation. If this is the case, the parties may be required to submit their dispute to mediation prior to commencing litigation to resolve their dispute. These types of provisions are routinely upheld and enforced by courts so much so that a party seeking to bypass mediation when the contract under which the dispute has arisen contains a mediation provision, will be ordered by the court to proceed to mediation.
Court Sponsored Mandatory Mediation:
In some cases, the court in which the disputing parties have filed a lawsuit may actually have a mandatory program under which all parties to the litigation must submit to mediation. Other courts or individual judges may merely strongly urge the parties to submit their pending litigation to a mediator. Because these mandatory court ordered mediations are by definition not voluntary, they are somewhat less effective in achieving settlements between the parties.
Voluntary Submission to Mediation:
Just because there may not be a contractual obligation requiring the disputants to submit their dispute to mediation or a court order that the parties mediate, this does not mean that parties to a dispute may not seek to have their dispute resolved by a mediator. In fact, disputing parties are free to agree among themselves to try the mediation process at any time even if they are in the middle of a long court battle. The parties to the dispute and/or their counsel may simply enter into an agreement to mediate their dispute, select an appropriate mediator, and embark on the mediation process to resolve their dispute.
If you or your attorney have any questions about initiating the mediation process we are always happy to answer them.