I have been trying to set up mediation for well over a month and court is in just over a week. The Secretary to the mediator informed me that the opposing party refuses because he does not believe it will work. What happens when we go to trial without this being done?
A mediation is for the purposes of having a neutral to help settle the case. You cannot force a settlement. If the other side does not want to settle there is no settlement
If the court orders mediation and the other party refuses he or she can be held in contempt. That said, as my colleague points out, a settlement in mediation is voluntary and cannot be forced. Thus, even if you force the other party into mediation, if he or she does not want to be there, it will likely be all for nothing. There could be some strategic advantage to forcing mediation, however, but to determine whether that makes sense one needs to do a case specific/fact specific analysis. Good luck.
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"What happens when we go to trial without this being done?" Well, you go to trial. If either party timely moves for mediation, it will be ordered by the Court. What the Court can't order is agreement. Mediation is just not the magic bullet some expect it to be.
Best wishes for an outcome you can accept, and please remember to designate a best answer.
This answer is offered as a public service for general information only and may not be relied upon as legal advice.
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