Quote of the Day - Meditation brings wisdom; lack of mediation leaves ignorance. Know well what leads you forward and what hold you back, and choose the path that leads to wisdom. - Buddha
Courts Can't Order Parties To Mandatory Mediation
"We forsee no apocalyptic consequences of this decision." Those are the yet-to-be-famous words of the Court of Appeals at the end of its decision to strike down a Court order that forced an uninsured defendant to participate in and pay for a mandatory mediation, despite an inability to pay, an undemonstrated liability and work that had no relationship to the matter being litigated.
Talk about facts that make the case. Here's how the Court of Appeals phrased part of its ruling: "it serves no purpose to force Jeld-Wen, an uninsured litigant and minor player in this complex action, to attend mediation where the combined costs of the mediator and attorneys fees expended to attend multiple mediation sessions could exceed the amount of the claim against it."
In the world of construction litigation cases, while some parties settle for what are likely legitimate claims, many are simply worn down by endless mediation, escalating costs and no hope for escape.
Well, here's the eject button: Jeld-Wen v. Marlborough Development Corp.
In this decision, the court of appeal reversed a trial court's order that forced a minor litigant to participate in a major mediation. The court ruled that mediation is supposed to be voluntary, and unless the parties all agreed to participate in the mediation, then the trial court didn't have the authority to order the parties to participate in mediation where the amount sought exceeds $50,000. The court also ruled that trial courts have no inherent authority to order parties to participate in mediation without consent, and the court can't threaten or impose sanctions to get the unwilling party to participate.
The court did say that a court could require a party to participate in one mandatory settlement conference and with some procedural machinations require a party to participate in the payment of a referee to conduct that MSC, but those instances will be very rare.