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News & Conversation > Court Ordered Mediation - Too Little, Too Late.
Court Ordered Mediation - Too Little, Too Late.

By law, many judges may or must order mediation of certain defined cases prior to trial and are often required to honor requests for mediation by any party. I think that’s still just too little too late. I think it’s time for the courts to go a little further to encourage pre-suit ADR, specifically mediation, and allow it to be used as a sword to deter and slow down the race to the courthouse in the first place.

Currently, the right / obligation for pre-suit mediation rests within either private contract or within a growing number of statutes governing various subject matters and causes of action. Why not amend the rules of civil procedure to provide that a party’s failure to mediate in response to a pre-suit request to mediate from the opposing party may be pled as an affirmative defense that judges may treat, in and of itself, as sufficient grounds to dismiss the complaint without prejudice?

Such an amendment puts more teeth in mediation, and promotes the self-determination of the more enlightened party or parties who have tried but been unable to engage other parties in a pre-suit mediation before taking their dispute to court.

Written by Thomas Meyer, Attorney, Arbitrator & Mediator, Loan & Real Estate Workouts & Restructuring Expert.



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