Should You be Forced to Use a Mediator?

Thirty years ago, in the early days of the popularization of mediation as a dispute resolution solution, citizens, like yourself, were just becoming used to the idea of using a <a href="http://shalleradr.com">mediator</a> in place of going directly to court. Over the past few decades more and more people are opting to use mediators instead of trial 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, <a href="http://happyyid.blogspot.com/2011/10/trial-court-takes-chair-advantages-of.html">mediation</a> is much simpler and non-threatening.

There are a few aspects of the mediation procedure that make it non-threatening. One reason for the non-threatening nature of mediation is the fact that it remains as private and confidential as both parties agree upon. Another non-threatening aspect of mediation is the lack of formalities relative to trial court. But the aspect of mediation that is surely the most non-threatening of all is the fact that mediation is voluntary.

Let's discuss what exactly makes the mediation process voluntary. Throughout the mediation process participants work together to find a mutually acceptable compromise. Then, the mediator draws up the agreement and if everyone is happy with it they sign. Therefore, in mediation the final decision is a voluntary agreement, meaning that mediation is voluntary.

But to throw a wrench into what we've just said there is another aspect of mediation that, according to some, does not need to be voluntary. Let's take a look at the decision to be mediated, does that need to be voluntary also?

Today, due to the popularity and success of mediation, even judges have begun sending people to mediators rather than processing them through the regular court system. The result- a mediation process which is not 100% voluntary.

There are those, like Frank Sander, who argue that the mediation process does not need to be entered into voluntarily for the outcome to be voluntary. Sanders differentiates between the decision to enter into mediation being voluntary and the final agreement being voluntary. According to Sanders, as long as the final agreement of a mediated case is agreed upon and signed voluntarily it is okay for a judge to require parties to undergo mediation. Sanders and others are in favor of requiring parties to undergo mediation and he is not alone.

On the other hand, even if one differentiates between volunteering to undergo mediation and volunteering to make an agreement upon concluding mediation, as Sanders does, there remains one major consideration, which may still make the idea of mandatory mediation a contradiction of terms. The problem is that once a judge requires that parties meet with a mediator those parties know that the judge expects them to work cooperatively. Likewise, both parties intuitively understand that if their case is being mediated they are expected to make compromises. As a result of being forced into mediation, the parties may agree to compromises that they do not really think are fair, and would not normally settle for. That doesn't sound so voluntary does it?

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.