Interviewer: What is the difference between voluntary mediation and court-ordered mediation, where it just gets to that point where it is ordered by a judge? Is there a real difference? Don’t all the parties still have to agree to mediation, or is that not how court-ordered mediation works?
The Need for Mediation Arises in Three Different Scenarios
Gary: Court-ordered mediation is usually something the parties may not want to do. Typically, mediation can arise in three contexts. One is both sides decide right at the very beginning, “We should enter into mediation because whatever it the issues are, the circumstances are just right for mediation. You don’t need to produce a great deal of discovery. It’s going to save the parties a lot of money, and why not let’s just go get this mediated and get this case over with.
It Is Advantageous If Both Parties Recognize the Benefits of Early Settlement
That is the best circumstance for everybody involved. If you can ever do that, it’s in your best interest to at least take a shot at it. Typically, it’s worth the money you pay, because if you can get it settled, you’re saving yourself not just a lot of money at the very end of a case, you’re saving yourself a good deal of money for the whole case.
Because the savings are so great, it puts economic pressure on people, and that’s a good pressure, because they realize the benefit to them economically to reach a settlement at an early stage.
The other way mediation comes up is, typically, courts, having their own private rules that every court has, their own rules and procedures, before they will even put a case on the trial docket it has to be mediated. Or, even if they put it on the trial docket, they want a certain date to get mediation completed by.
In Dallas Divorce Courts, Mediation Will Be Ordered Prior to Trial Being Scheduled
So, they automatically, as part of their procedure, order the cases to mediation and appoint a mediator, and it tells the mediator to make these parties come to a time when they can meet and orders everybody to that time period and that mediation.
In Dallas all the courts follow that jurisdiction. In Collin County, which is north of Dallas and Plano, it’s not like that. Some of the courts do have mediation requirements, some of the courts don’t. Whether or not they have that or not or whether or not the court does it, you can always ask to file a motion. One party can file a motion to compel the other side to mediation.
If One Party Is Reluctant to Enter into Mediation, the Judge Can Order He or She Attends
If the judge is convinced by the party filing the motion that mediation is proper, the judge can order the other side to mediate and not just mediate but mediate in good faith. It’s not just that you show up for the mediation, you have to mediate and try to resolve the case. If the mediator thinks you’re not resolving the case in good faith, they can actually petition the court and say one side’s not mediating in good faith; one side’s just wasting everybody’s time.
That’s not a good thing for you. Typically they may not be able to file an actual sanction against a party for doing that, but it’s not going to help them in the long run.