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Voluntary Versus Mandatory Mediation

Mediation of a dispute may occur as a result of voluntary private agreement, community program, or court order (which includes statutory mediation of some matters prior to trial). However, the term “mandatory mediation” may be misleading. It merely means that the parties are “forced to the table” to try to resolve their dispute prior to trial. It does not mean that they are required to settle their dispute; it merely requires that they attempt to do so in good faith. The decision to accept the outcome of the mediation and settle the matter remains voluntary. If the attempt at mediation fails to resolve the dispute, the parties may continue to litigate the matter.

A voluntary agreement to mediate a dispute may pre-exist the dispute, as in a private contract provision in which the parties agree to mediate any dispute that may arise in the future. Alternatively, a decision to mediate may come about after a dispute has already occurred and the parties are merely considering a way to resolve the matter without going to court.

Statutory mandatory mediation usually governs disputes concerning certain subject matters, such as labor relations, family matters (e.g., custody disputes), or consumer matters. Many states also have mandatory mediation provisions for civil disputes in which the dollar amount in controversy falls within a certain range. In those circumstances, mediation becomes an integral part of “pre-trial procedure,” promoting the resolution of the dispute at a stage before the cost of litigation has begun to accrue.

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