Forced Mediation

Over the course of the previous thirty years mediation has grown exponentially in popularity

. While it used to be that people rarely considered working out their differences in a mediated forum, today many people opt to use a mediator instead of going to court.

There are a few different reasons for the popularity of mediation two of the most attractive being cost and time efficiency. But one of the things that people enjoy so much about mediation is the non threatening process. While most citizens are intimidated by the court system, with judges and lawyers and lingo that most laymen would not understand, mediation is much simpler and non-threatening.

Mediation is non-threatening for three reasons: it's private; it is much less formal than trial court, and it is voluntary. Mediation is private in the sense that each party involved agrees not to reveal what is discussed in the procedures. Mediation is less formal that trial court, as discussed, because the structure is that of an even playing field negotiation procedure rather than being competitive. Mediation is voluntary, but the term "voluntary," in regards to mediation, has come to some debate.

One voluntary aspect the mediation process is the final agreement. The two disputing parties do not have their prize or punishment decided for them by any type of judge. In fact, a mediator is nothing like a judge. The mediator's job is to help encourage the parties to come to a fair solution. Once all involved can agree on a solution the mediator prepares the document and everyone involved signs. Since the 'final ruling' is decided by the participants themselves, and not by a judge, a mediated solution is always voluntary in nature.

Nevertheless, while the agreement component of mediation is always voluntary, there is serious debate as to whether the entire process of mediation, including the decision to be mediated, needs to remain voluntary.

Historically, nobody was ever forced to use the services of a mediator. People only went to a mediator if all parties involved agreed to mediation as the dispute resolution method of choice. However, things are changing. As a result of the positive results that mediation often renders, judges have begun to send certain cases to mediation. In these cases the mediation participants do not voluntarily choose to be mediated, rather they are forced. This phenomenon opens a discussion as to the how 'voluntary' mediation needs to be.

Frank Sanders, who is a mediator who has seen the growth and development of mediation for more than 30 years, opines that having mandatory mediation does not ruin the voluntary aspect of mediation. He argues that as long as the final agreement is signed voluntarily that is good enough. According to Sanders and his camp mediation can be forced as long as the final agreement is voluntary.

The question that some have is whether requiring parties to meet with a mediator could make the agreement involuntary as a result. It would only be natural that when a judge requires of people to meet with a mediator those people will possibly feel forced to make compromises that they wouldn't necessarily make otherwise. If so, forced mediation might need to be reconsidered, or at least it might need to be considered involuntary.

Another problem with forced mediation is the lack of control that might be caused to the participants. Instead of going to mediation with a sense of control, because it is voluntary the participant may feel more pressure. So should mediation be allowed to be forced? The jury is still not out.

by: Karel Stan

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