Private v. Court-Ordered Mediation
If you are new to mediation or your head is spinning from researching the next steps, I hear you and I see you. Diving into all your options during this highly emotional and heart-wrenching time can be overwhelming. This is why I provide an easy-to-read guide on private and court-ordered mediations.
1. Private Mediations
“Private” is a term often used in the mediation world to describe mediations that occur outside of court-ordered mediation. In essence, a couple or the individuals involved decide they want to try mediation before heading to court. They are seeking to avoid the need for a court-ordered mediator, mediating instead on their own terms without court involvement in the mediation process.
What do you mean on your “own terms”?
Great question! When a mediation is court-ordered, you could end up with a mediator who is not of your choosing. You might also have to work within a certain timeframe. When done privately, you both control who you hire as your mediator and the timeframe of your mediation journey.
2. Court-ordered Mediations
These are mediations that a court or judge orders. Usually, a court will have a list of mediators who are approved to mediate particular cases. The judge uses this list in her or his appointments. These mediators could be attorneys who primarily work as attorneys, attorneys who primarily work as mediators, full-time or part-time attorneys, retired judges, social workers, master-level therapists/counselors, educators, or private mediators who were trained through mediation programs. Every court is different in this process and with who they accept as court-approved, so it is best to talk to an attorney in your jurisdiction if you have specific questions.
3. What are the benefits of “private” mediations?
Control- Private mediation participants control nearly every aspect of mediation. The participants/clients are in charge of the pace, what is the focus of the mediation, and of course the final agreement. They also control who they select as their mediator.
Privacy- When done “privately” and outside of litigation, your status of being involved in mediation will not be found on the public record. All mediations are generally confidential, with a few exceptions.
Often, when clients are already in court and are ordered to mediation, courts will state on record they have ordered these individuals to court-ordered mediation. Sometimes, a failed or unsuccessful mediation will be labeled as such on the public record. While the substantive content of any mediation is generally not found on the public record, many clients do not want even their mediation status on a public docket sheet.
Time to consult with professionals- The participants in private mediation set the pace of the mediation and this allows ample time for each individual to seek and consult with their own professional experts if they so desire. A few examples of outside professionals the clients might consult with during the mediation process include attorneys, accountants, child psychotherapists, and divorce/family financial advisors.
Comfort and Flexibility- Not all mediators offer flexible meeting times or telemediation. Since court-ordered mediation may result in you working with a mediator not of your choosing (or perhaps they are not your first choice), strong personality conflicts could potentially arise (of course, personality conflicts could also arise with your privately selected mediator). This misalignment has the potential to create a huge impediment to successful mediation.
Empowerment-Conversely, clients often feel empowered when they make their own decision on who will mediate their dispute. They have likely already received a “feel” for who their mediator is and have come to a conclusion that the mediator’s personality, style, and approach matches their own personalities and unique circumstances.
Financial & Efficiency- There are at times exceptions, but often participants are required to pay their court-ordered mediator (just as they would a private mediator). If a mediation is unsuccessful because of a personality conflict or for any other reason, participants may decide to not proceed with that specific mediator. This often wastes the clients’ financial resources and is inefficient, possibly landing the clients deeper into contentious litigation, which can be emotionally, mentally, and financially draining.
The possible pitfalls of court-ordered mediation are not to say court-ordered mediation is to be avoided or is “bad”. Court-ordered mediation often reduces the number of issues litigated, or completely resolves the case, and this can be a wonderful thing! We merely seek to provide insight and important considerations.
*As always, please note this blog post is NOT intended to be a substitute for legal advice. It is best to speak with an attorney in your jurisdiction for specifics on your court system and/or for legal advice/consultation.
