Mediation has always been billed as a voluntary process. After all, no one (not even the court) can force a person or company to settle a matter. The way courts in NJ get around forcing parties to mediate cases is by having an “out” before charges start.
A recent case in California upheld the principle of voluntary mediations. In Jeld-Wen v. Marlborough Development Corp (06 S.O.S. 76), a Superior Court judge ordered the parties in this complex case back into mediation. The appellant refused to attend, contending that you cannot force a party to mediate and that since they were a minor defendant in the case, their pro-rate share of the cost to mediate would exceed the total claim against them. They decided not to show up at the mediation and the plaintiff filed a motion for sanctions, which was granted.
Jeld-Wen appealed and the appeals court ruled in their favor, stating that “While trial courts may try to cajole the parties in complex actions into stipulating to private medaition…they cannot be forced or coerced over the threat of sanctions into attending and paying for private mediation as this is antithetical to the entire concept of mediation. ”
Mediation, like any other tool, is only useful if it brings more value to the participants than it costs.