The need for this article comes from the many calls my office receives from individuals who want to schedule a mediation with us, and the first question we always ask is, “Has the other party agreed to schedule mediation with us?” We often hear that moment of awkward silence on the phone while the caller is processing the implication that we cannot require or force the other party to participate in mediation, unless there is a court order requiring it. Even then, unless the order specifies Minnesota Mediation Services as the provider, the parties have to agree on who they use as a mediator.
The more essential question that callers often need an answer to is, “What if we are required to mediate by a court order, and the other party won’t cooperate in scheduling one?” That’s a good question. I have never seen a court order for mediation that lays out what the party is to do in that case, and it is really important to know this. The advice I have given legal clients in consultation is:
- Give a written statement of the issue you want mediated to the other party (A letter is best; email OK; text will work, but least preferable). Keep of copy of all your written communications.
- Make the request to mediate the issue in writing, and give a date by which the mediator and the time and place must be agreed to. (Usually a couple of weeks to give time to locate and agree on a mediator, a time, and place.)
- If the other party is non-responsive or uncooperative, and the deadline is not met, then you will have to schedule a motion with the court to get the relief needed (there are self-help forms at http://mncourts.gov/GetForms.aspx?c=4 if you don’t have an attorney).
- When you file your motion, you will also need to file a “certificate of settlement efforts” (found at http://mncourts.gov/GetForms.aspx?c=18 ). On this form, you will state the efforts you made to schedule a mediation, and your written requests will be evidence of those efforts. If the court finds that the other party refused to follow the court’s order to mediate, the court can award you attorney’s fees and/or any costs you had in bringing the motion.
I realize that this is a lot of technical information, but it will avoid a lot of potential frustration and the possibility of being either stuck in your efforts to address issues, or wasting a lot of time going to court only to be sent back to schedule mediation, and getting no relief from the consequences of the other person’s refusal to follow the court order. More and more courts are enforcing mediation clauses, and will deny going forward with a hearing if the parties have not at least attempted mediation.
In some cases, there is no court order to mediate. In those situations, we might be willing to contact the other person, and simply say “_______________ has contacted us about scheduling a mediation with us, and we are just calling to ask if you are also willing to schedule with us, and to answer any questions you might have about our services.” This can also be done where there is an order for mediation that does not specify who the mediator will be. As long as parties know what the “back-up” process is when the other party doesn’t cooperate, no one needs to be paralyzed when it comes to addressing issues that must be decided.