What If The Other Side Wont Mediate?

Today, I want to talk to you about mediation. Big surprise. So I had a listener ask a question that said, what do I do if the other party won’t come to mediation? And so there’s a couple different ways to go about this. It depends. So if you have attorneys, it’s up to the attorneys generally to schedule mediation. So you need to talk to your attorney and you need to stay on top of them and get mediation scheduled. But what if they aren’t? still are not scheduling? Well, it could be due to a couple of things. Maybe the other side is pro se. If the other side is pro se, then maybe your attorney may need to file a motion to compel mediation with the court to make that other party attend. And the judge will then order it, say within 30 days, the parties have to go to mediation. Okay, great. What if the other side has an attorney and they’re stalling and they’re not Well, it could be due to a couple of things. Maybe there’s a schedule conflicts. So maybe both the attorneys have trials set, depositions already set. And so, you know, trying to coordinate both of the attorneys schedules and trials, also trying to then schedule both the attorneys. parties’ availability, and then schedule the mediator. And let’s say, for example, maybe there’s accountants or guardian ad litems on the case. I mean, trying to schedule everybody is not just as easy as let’s just pick a day and everybody drops everything. Usually for the parties, they want it quicker, sooner rather than later, but there can be logistic things. Also, you know, it can depend on the time of year. Maybe it’s even… Maybe it’s summer, maybe people are on vacation, and sometimes an attorney will file a notice of unavailability, and they’re unavailable from a certain date to a certain date. Maybe they’re on vacation, or maybe they’ve got trials. There’s a number of different reasons why. One of the other reasons, possibly, could be that maybe they can’t agree on a mediator. So maybe one attorney says, hey, what about these three mediators? And the other attorney goes, no, I don’t like those. What about these three mediators? They’re like, well, I don’t know them. I don’t want to go with them. Well, what about this mediator? Well, no, I don’t want that mediator. And so they go back and forth. I know that because I have, I think accidentally, probably, been cc’d on this type of communication via email, where when they finally decide and say, hey, Matthew, we want you to schedule this mediation. I go through all their emails and they’re going back and forth listing mediators and availabilities and trying to schedule this. And I see my name on there with two other mediators and they finally are able to then schedule the mediation and they agree to finally choose me. So there could just be a number of different reasons why. Another reason why is maybe one side is just stalling the entire process. They’re not in a hurry to get to mediation because they know when they get to mediation, then you’ll be able to set trials. You’ll get to a final ending. And maybe then that’s when timesharing starts and they don’t want timesharing to start. Maybe they’re using it as a tactic to delay the inevitable. Maybe sometimes the attorney is simply just wants to bill, bill, bill, bill, bill, bill and get paid. Hopefully that’s not true, but I have seen that as well. And so for you as the client, it’s important to ask all of these questions, inquire, try to figure out what’s going on. You have a right to know you are the one paying the attorney. Therefore, you’re the employer. They’re the employee. You have a right to know what is going on. Yes, they’re there to give you legal advice and guide you through the process, but you’re paying. So ask these questions. It’s very important to ask. So what if you just go round and round and round and round and nobody can get anything scheduled that’s just delay, delay, delay? Well, nothing says that one attorney cannot file a motion to compel mediation and actually name the mediator and have the court name that mediator in their order. I have had that. I have received those orders where they have gone and an attorney has filed a motion to compel mediation and said, we specifically request that the court name that mediator. order that the parties attend mediation with Matthew Brinkman. I’ve had those. So that is another way to do it to avoid delays or the disagreement of no, no, no, no, no of all these different mediators. And so when it comes to then what if one party doesn’t show to mediation? Well, When mediation is scheduled, if it’s court ordered and scheduled, it has to be coordinated and scheduled. When it’s scheduled, I have to file a mediation conference report after mediation saying either that, the parties attended or the parties didn’t attend, mediation took place, didn’t take place, and then the outcome. The only thing I can say on an outcome is… There was an agreement. There was no agreement. They’re reviewing an agreement. There’s a continuance and they agree to adjourn. And that’s it. I can’t say, well, your honor, this one did this or said this or no. I can just notice like, hey, we either had mediation, didn’t have it. And here’s the outcome. And so then, well, you know, the other question, the other half of this question that I got from the listener was, well, what about the payment? because I want to use a private mediator and they want to use the courthouse mediation program. So let’s talk about the courthouse mediation program, at least courthouse mediation program in Florida. If you’re under $100,000 combined income, well, then you can use the courthouse mediation program and Yeah, that’s all I’m going to say about that. If you’re over $100,000, well, then you cannot use the courthouse mediation program and you have to go private. You’ve got to use a private mediator. Private mediation is more costly than courthouse mediation. But you can probably get in faster. You will most likely have better results. They will most likely be better trained. And yeah, so at that point, you know, okay, so, you know, what about the cost differential? Well, sometimes, and I’ve seen it where they’ve gone to court and they said, hey, look, Your Honor, we want private mediation and you know what? I’ll pay for it. And so one party says, I’ll pay all of it. Or what they’ll do is they’ll say, look, the other party just has to pay what they would have paid for court mediation and I’ll pay the difference. There’s lots of creative ways to do that to try to achieve the results you’re looking for when selecting a mediator. But just know, nobody can unilaterally select a mediator. It’s got to be agreed upon unless they are named in the order like we previously they spoke about. So if you are looking for a mediator. I’ve got another episode called Best Tips, and it’s a part one and part two that talks about things to ask a mediator, how to find a mediator, what’s important when looking for a mediator. And so I suggest you listen to that podcast episode. Hopefully I’ve answered your question on what if the other party will not come to mediation, how to get it scheduled, and also discussed dividing the cost of mediation.