Most judges require mediation before a contested family law hearing or a trial because it is so successful. Most mediations result in a mediated settlement agreement, or “M.S.A.” If mediation is not required by the judge, it can still be ordered. Even the few judges who do not require mediation will usually order it if requested. That request is made in a motion to compel mediation. Divorce mediation usually results in an agreement. The first step to making mediation happen if one party will not attend voluntarily is a motion to compel mediation. If the motion is granted, the judge will sign an Order Compelling Mediation or an Order to Mediate. That order usually appoints a specific mediator and orders the parties to contact the mediator and mediate by a specific date.
If mediation is required by the court’s rules or policy, and the other side is not responding to suggested mediators or providing possible dates, a motion to compel mediation may also be appropriate. If the judge requires mediation and it does not happen by the trial date, the judge might:
- Dismiss the case;
- Reschedule the trial to allow mediation; or
- Waive mediation and start the trial.
To avoid these outcomes and have a better understanding of whether a trial will start as scheduled, file a motion to compel mediation. If the order just appoints the mediator and orders the parties to make contact and schedule mediation, without specifying a date by which it must happen, you might be back in court if the other side does not comply.
If an order to mediate is necessary, the party requesting the order should attend the hearing with the name and available dates for a few suggested mediators. That enables the judge to order each side to be at a mediator’s office at a particular time. If the other side does not show up, the trial may proceed as planned. The judge will probably order the side who did not show up to pay the attorney’s fees and mediator fee of the one who did.
Why File A Motion To Compel Family Law or Divorce Mediation?
Most family courts will not allow a trial until mediation takes place.
- Some lawyers are unresponsive and it becomes necessary to file a motion to get their attention.
- If the judge orders mediation and it does not take place because the other party does not show up, the trial is likely to proceed. The judge will most likely award attorney’s fees to the person who showed up to mediate.
- Even if the court does not require mediation, most people do not want a trial. Most cases that go to mediation get resolved there. A person might want it ordered if the other side will not go voluntarily.
Advantages of Divorce Mediation
There are advantages to divorce mediation. Trial is expensive and unpredictable. Mediation allows the parties to negotiate and voluntarily sign an agreement. Judges hear admissible testimony, review admissible evidence, and tell you the outcome. There is no negotiation in court. Some of what you want the judge to consider might not be admissible in court. The judge might never know some information you consider important. There are no rules of evidence or procedure at mediation. Everything can be discussed and, in most cases, resolved at mediation.
An order compelling mediation removes uncertainty. It either resolves the case or gives you the assurance that all was done to avoid trial. If the judge requires mediation, it avoids the uncertainty of not knowing what will happen on trial day if you have not mediated.
DISCLAIMER: This site and any information contained herein in intended for informational purposes only and should not be as legal advice. Seek competent legal counsel for advice on any legal matter.
© Copyright Brian McNamara, 2016. May be reproduced with credit to the author.