Mediation is the process used to settle conflicts between two parties. This alternative resolution process is facilitated by a neutral third party who intervenes in order to promote a settlement or compromise. Mediation is generally a more cost effective and quicker means of settling issues, and typically lasts a shorter amount of time than a trial.
Further mediation can provide disputing parties with a chance to identify and resolve the issues at hand, as well as potentially discover issues that were not originally thought to be contributing to the issue. The entire mediation process is confidential. This means that should the mediation process fail, nothing from the sessions may be used in court. Mediation is often used to avoid litigation. Therefore, if the conflicting parties cannot reach an agreement by the conclusion of the mediation process, they will need to move on with the legal process.
The most common cases that utilize mediation include:
- Divorce settlements;
- Child custody and child support agreements;
- Spousal support (also known as alimony) agreements;
- Contract disputes;
- Landlord and tenant disputes; and
- Employment disputes.
Mediation can occur through a voluntary agreement between the parties, as part of a community program, by statutory requirement, or by a court order. Voluntary agreement and community programs are both considered voluntary actions, as the parties are not forced to enter into the mediation process. Alternatively, court-ordered mediation and statutory requirement mediation are considered to be mandatory because the parties are required by law to attend all mediation meetings.
However, mandatory mediation does not mean that the parties are required to reach an agreement by the end of mediation. “Mandatory” simply means that both parties will make a good faith effort in order to participate in mediation before their trial.
As mentioned above, a judge will order mandatory mediation to resolve issues related to child custody and visitation, as well as child support agreements. The court will screen the parties involved to determine if mediation is a good fit for the specific circumstance, and appoint a mediator to the case if mediation is deemed appropriate.
Most commonly, a judge will order mandatory mediation for child custody cases. For example, the parties involved may be required to compose a child custody schedule, which will then be submitted to the court for final approval during formal hearings. A mediator will ensure that each party’s concerns are heard, and each party walks away with an agreement that works for everyone.
Mandatory mediation for family law issues may also be required for:
- Calculating child support amounts and custody schedules;
- Calculating spousal support during or after divorce proceedings;
- Creating a child visitation schedule that considers the needs of each parent, as well as what is in the child’s best interests; and
- Allowing parties to discuss past instances of abuse or infidelity in a safe environment.
Some state statutes may require mandatory mediation if the dispute involves financial matters that fall within a specific dollar amount. Each state has different laws and statutes regarding mandatory mediation. Therefore it is important to research your specific state laws regarding mandatory mediation.
Family courts will not order mediation under specific circumstances, even if it is generally the court’s policy to require mediation. Examples of these circumstances include:
- Cases in which the parties have a history of power imbalance;
- Cases in which there is a history of domestic violence;
- Cases in which there is a history of substance or child abuse; or
- If either party has a history of, or is currently dealing with mental health issues.
Additionally, if the court’s screening process does not recognize that your specific situation is not suitable for mediation, you may be allowed to opt out of the court ordered mediation.
Compliance with court orders and state statutes is absolutely essential. Failing to attend a mandatory mediation session could lead to serious consequences, such as:
- Being held in contempt of court, which is punishable by a court fine as well as detention in a jail facility. For example, attending sessions but refusing to speak, or attempting sabotage the sessions, may be considered as noncompliance with the court order; or
- Your case’s outcome being negatively affected. In extreme cases, the court may even decide against you, if you repeatedly fail to attend mandatory mediation sessions; or
It is advised that you consult with your family law attorney if you need to miss a mandatory mediation session, and if you believe you have a valid reason. You are expected to make a good faith effort to discuss the issues and reach an agreement, if possible. It is important that you attend all mandatory mediation sessions as well as participate in order to help the process run smoothly.
If you have been ordered to attend mandatory mediation sessions, but the other party has abused you in the past or is currently abusing you, you should speak with your legal counsel. Some states require that judges screen out domestic violence cases, so that the abuser and the abused are not forced to speak to each other.
Other states depend on the mediator to terminate the session if they suspect there is domestic violence between the two parties. Still other states do not have any rules regarding domestic violence and mandatory mediation specifically. In those states, the decision of ordering mandatory mediation is left entirely to each individual judge.
A skilled and knowledgeable family law attorney can assist you in navigating the mandatory mediation process. Additionally, they can educate you on your state’s particulars regarding mandatory mediation, and even be present at mediation sessions, if needed. Finally, should mediation lead to legal proceedings, your attorney can represent you in court as needed.