Mediation

2. Mediation: If You Are Ordered to Mediate, Can You Object?

Yes, you can object if you do so within ten days of the time you receive the order referring the case to mediation. If you have a good reason, many courts will allow you to skip mediation. Other courts are inclined to require mediation even if the parties don’t want it. A court has considerable discretion to require a party to participate in mediation.

There is a split of authority on whether the order can include a requirement that the party mediate “in good faith.” All of this is probably academic for parties who are truly not willing to discuss settlement of their cases. The bottom line is that courts don’t have the authority to make someone settle. This, of course, goes back to the old adage about being able to lead a horse to water but not being able to make him drink.

As with most portions of the Family Code, there is a family violence exception. If a court finds that there has been family violence, the court is not allowed to order the parties to mediate. Even if the court rejects an objection to mediation based on family violence, the court is to order that the mediation parties will have no face-to-face contact.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 14, pp. 205-206.