This post follows on from my earlier post ‘Four Characteristics of Mediation’, which is availabale at:

Mediation is a process that people enter into voluntarily.  The people involved in a dispute decide to consider mediation as a way to resolve their issues.  They decide to meet the mediator to discuss their case and how they see things.  They decide to take part in a meeting with the mediator and the other people involved.  They decide whether to come to an agreement. That’s why people tend to honour voluntary mediated agreements, because they have not been forced to accept a decision by somebody else.

On reflection, it could not be any other way.  If a person was forced to take part in mediation, they would go through the motions, perhaps agree to something they didn’t really want and not follow through with any resulting agreement.

That said, mediation does have less voluntary elements.  Firstly, when approaching a court to resolve a dispute, people are be expected to have considered mediation, and (in the case of family and employment cases) discussed the case with a mediator.  If a court finds people didn’t have a valid reason to refuse mediation, then it may award costs against them.  Secondly, at the end of a mediation, if an agreement is reached, the agreement can be changed from ‘voluntary’ to ‘legally binding’, with the consent of everyone involved.  A court will then enforce the agreement if one or more people refuse to meet their obligations.

To some people involved in a dispute, mediation might not feel voluntary.  They are often faced with the ultimatum from the other people involved – agree to mediation or…. (usually “we’ll see you in court”).  But in effect this is a choice,  If they choose mediation, it’s the better option for them, faced with the alternative, at that particular moment in time.

Photo by Jon Tyson on Unsplash

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