Voluntary or Voluntold?
Most Mediators, including me, think that one of the most foundational parts of mediation is its voluntariness. But we live in a world with mandatory mediation, so what gives? How can mediators define mediation by its voluntariness but support people being forced into mandatory mediation?
Ontario Mandatory Mediation Program
The Ontario Mandatory Mediation Program requires certain litigants to spend time (minimum 3 hours) with a mediator prior to having their case heard in court. The goal is to help the parties settle early and save time and money for the litigant and the courts.
The other common form of non voluntary mediation is mediation that is required by an employer between two employees, workplace mediation. The employee, under their duty of obedience to employer direction may be forced to attend a mediation.
What is Mandatory and What is Voluntary
In both these cases, what is mandated is attendance not outcome. The court forces the litigants to go to mediation and the employer forces the employee to go. Neither system demands a settlement. That type of coercive power has no place in a mediation
Participation is where the water gets murky. An employee who fails to follow an employer direction to participate actively in the mediation could face discipline. Mediation needs parties to be open about the situation and possible solutions. However, the mediator is often not in a position to determine who is participating fully. All of a sudden the voluntariness of mediation looks a little suspect.
If the parties are not free choose whether to settle or not, then it is not mediation. Mediation conducted by internal managers (Management Mediation) often has a point after which the manager will exercise authority to solve the conflict. At the point at which the outcome is decided by the neutral or the neutral forces the parties to settle it is no longer mediation.
What are the Risks of Making Mediation Mandatory?
- Parties may not fully participate in the process
- A power imbalance may exist
- Waste of Time
The parties may not want to participate, but mediators are trained to overcome resistance to participation. This is the least worrisome of the three.
The reason some people don’t wish to mediate is that they feel outmatched or intimidated by the other party. When people are forced into mediation the mediator needs to be even more vigilant for power imbalances.
There are some cases people just don’t want to settle. In these cases where people thrive off of or benefit from the conflict, mediation will be a waste of time and money.
What do you think? Should mediation be mandatory? Should the Ontario Mandatory Mediation Program be expanded? Have you been forced into mediation? Did it help? Let me know in the comments.