Mediation: Voluntary but not without obligation

Participation in mediation is always voluntary. A judge or anyone else cannot compel parties to participate. There is no law mandating mediation, nor is there any legislation regarding the voluntariness or enforceability of mediation.

Nevertheless, a participant may feel compelled. In divorce proceedings, for example, the parents are expected to make an attempt to arrive at a parenting plan. If a participant does not give mediation a chance, the participant actually indicates that he or she does not want to cooperate in finding a solution.

Once the mediation starts, what remains of the voluntary and non-committal nature?

Mediation is voluntary

Voluntariness and non-commitment are concepts that can be found in a mediation agreement and also in the MfN mediation rules. Voluntariness means that all participants in the mediation process are willing to participate.

Voluntariness also entails the possibility for a participant and the mediator to end the mediation at any time. This follows, among other things, from Article 5.1 of the MfN mediation rules. The participants and the mediator may attach conditions to the manner of ending the mediation and record this in the mediation agreement.

Mediation is not without obligation

Voluntary does not mean without obligation. If a participant starts a mediation process, the participant expresses the intention to resolve the conflict. From article 5.2 of the MfN mediation rules it can be derived that this intention may also be regarded as binding and enforceable by the other participant. If a participant says yes to mediation, the participant will have to make some effort to find a solution.

Conclusion

Participation in mediation is always on a voluntary basis. Once a mediation process has started, the other participant may expect a certain degree of commitment. Mediation is therefore voluntary, but not entirely without obligation.

For more information on mediation, please contact one of our mediators.