Voluntary Mediation Versus Mandatory Mediation: What You Need to Know

Mediation is typically described as a “voluntary” process, where some or all the parties involved in a dispute will hire a mediator to facilitate communication between them and to assist them in reaching an agreement that would benefit all of them. In a voluntary mediation the interested parties have no obligation to attend the mediation session and when they do, there is no obligation for them to settle.

To put it simply, the aim of a voluntary mediation, is to offer to the parties involved in a quarrel the opportunity to try to resolve their conflict amicably through mediation rather than proceed through the court system.

Nevertheless, with the COVID19 pandemic, court calendars have become more overloaded. As a result, many judges are encouraging the parties to consider mediation during the course of a trial.

This leads us to the following key question: even if you made the decision not to mediate and to go directly to trial can a judge now order you to mediate?

The authority for a judge to order the parties to mediation is found in California Probate Code section 17206: “The court in its discretion may make any orders and take any other action necessary or proper to dispose of the matter presented by the petition (…)”.

While section 17206 of the California Probate Code does not specifically mention mediation, it appears to allow the Court discretion in methods to resolve cases.

In the recent case of Breslin v Breslin No. 2d Civ No B301382 filed January 26, 2021, the probate court ordered a matter to mediation. The notice of mediation that was sent to all interested parties contained an advisement that mediation may result in a settlement of the matter that the parties receiving notice would be bound by. Interested parties were also advised that failure to participate in mediation may result in loss of rights.

In this particular case, party X received notice and failed to participate in the mediation ordered by the judge. An agreement was reached among the participating parties that excluded Party X. Party X then objected to the Court approval of the settlement. The court denied Party X’s objections and the settlement was approved by the Court.

Therefore, if you are considering going to court without trying to resolve your case amicably through mediation before, bear in mind that if the court orders your case to mediation and you or any other party fails to participate, you will be bound by the settlement reached by the participating parties. As a consequence, you will have spent thousands of dollars to get a judge to decide on your case for nothing. Therefore, think twice before you make the decision not to mediate and to go to court for a dispute that can be considered by the judge as a simple family feud more than a legal issue.

To us, this case law is an acknowledgement by the judicial system that mediation is a powerful tool to resolve disputes. At Mediation Path Silicon Valley, we have always believed that it is only through full participation by all parties that a meaningful resolution be reached.

In other words, we are of the opinion that a court of law is not always suited and/or necessary to solve family issues mostly for the following reasons:

1) In court, the parties are not given a chance to be heard by the judge and the above case low is a great example of this. On the contrary during a mediation, you speak for yourself;

2) The law is applied based on the facts as they are presented to the judge. In court, the judge decides without caring for the family member's emotions. Mediation deals with both facts and emotions;

3)In a court proceeding, there is a winner and a loser. The mediation process allows the parties to design their own resolution to their dispute resulting in a solution that can benefit everyone.

Mediation Path Silicon Valley, LLC is devoted to supporting families. Call us, if we can be of assistance in helping you resolving a family dispute. Please note that, at MPSV, working remotely with family members, beneficiaries, lawyers etc. via video conferencing or conference calls is not something new to us. We are here to help and allow you to be safe while dealing with important matters.

Mediation Path Silicon Valley, LLC is devoted to supporting families. Call us, if we can be of assistance in helping you resolving a family dispute. Please note that, at MPSV, working remotely with family members, beneficiaries, lawyers etc. via video conferencing or conference calls is not something new to us. We are here to help and allow you to be safe while dealing with important matters.