is mediation mandatory?

in this day + age, from a practical perspective, the answer is yes in the majority of cases. sometimes the law, an agreement or governing document requires that a dispute be submitted to mediation before it proceeds to a decision maker. even when that is not the case, parties are often encouraged to try to work collaboratively to address their conflict.

aside from the benefits mediation offers in terms of confidentiality, savings of time + cost and the prospect of deciding the outcome of the matter for yourself, a key reason why mediation is encouraged even when it is not technically required is positional in nature. especially with courts backlogged even further as a result of the COVID-19 pandemic, decision makers often want to see that parties tried everything before going to them. this usually makes a difference when it comes to recovering costs.

that is, even if mediation was not necessary, it typically helps your chance of recoving your costs if you can demonstrate to a decision maker that you attempted it + were not heavy handed in your approach. this sentiment has been reflected in court decisions surrounding costs. it has been considered by arbitrators, adjudicators + other decision makers as well.

so, even if your conflict falls into circumstances where mediation is not technically required, it can often be worthwhile to consider it. unless there is a safety concern or an immediate, pressing deadline for an outcome, there is often little to lose in trying to mediate.



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