Mediation is a form of alternative dispute resolution. Through this type of alternative dispute resolution process, a mediator is assigned to a case and works with the parties to reach a resolution of a dispute. Mediation is an alternative to full judicial proceedings, including a trial.
Mediation can be a voluntary process, one that is agreed to between the parties in a preexisting contract, or ordered by a court. Court-ordered mediation is becoming increasingly common in divorce and other types of family law matters.
The Specifics of Mediation
A mediator does not function like a judge in a trial. A mediator does not make decisions for the parties to a dispute. Rather, a mediator is charged with the task of helping parties reach a resolution of a dispute through discussion, negotiation, and compromise.
A mediator acts as something of a guide and moderator for and between the parties. Although a mediator does not make decisions in a dispute, he or she may make suggestions along the way.
A mediator does establish ground rules for the overall mediation process. The parties to a mediation are expected to follow those rules established by the mediator.
If a mediation is successful, the terms and conditions of the agreement reached between the parties will be memorialized into an agreement. If the mediation occurred as part of a judicial proceeding, like a divorce case, the mediation agreement will become part of the court’s order.
A mediation can last for one session, or multiple settings, depending on the issues, circumstances, and needs of the parties. Attorneys sometimes are included in a mediation session, or at least part of such a session.
Finally, a mediator has specialized training. In most cases, a mediator involved in more complicated matters has a law degree.
Court-ordered mediation can occur in one of three different ways. First, some jurisdictions now have laws on their books, or court rules, that require mediation in certain types of cases, for certain reasons. For example, in some jurisdictions, before court will hold a child custody hearing, the law requires the parties to attempt mediation.
Second, in other situations, there may not be a general law or court rule requiring mediation. On the other hand, a judge on his or her own volition may order mediation in a particular case. For example, if the parties to a divorce are having a hard time making decisions regarding the division of assets and debts, a judge may order mediation to attempt to resolve that issue.
Finally, parties to a divorce may determine that they would like to try mediation. They may seek approval and an order from the court to permit mediation in their case.
Sanctions for Not Attending Court Ordered Mediation
Failing to follow an order of a court is always a serious matter. The bottom line is that when any court order is not followed, the individual who makes the decision not to comply technically can face contempt of court charges.
Barring a very solid reason for not attending a scheduled mediation session, at a minimum the sanctions you face will be a court order requiring you to pay for the mediation itself. You are highly likely to be ordered to pay the full cost for the mediation, because the mediator set the time aside to address your matter.
You may also be ordered to pay some sort of compensation to the other party as well. If the other parties attorney was involved in preparing for or attending the mediation, you may be hit with an additional order requiring you to pay those fees as well.
On top of all of this, the court may impose an additional financial penalty on you, payable to the court. You might consider this akin to a fine for your violation of a court order, although it really does not meet the precise legal definition of a fine.
If you have consistently failed to comply with directives of the court in your case, you could be found in contempt of court. You are technically entitled to a hearing before such an order is entered, to present your position about not attending mediation. A contempt citation can mean a monetary penalty, jail time, or both.