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Court-Ordered or Private Mediation?

What is Court-Ordered Mediation?

It is common for a judge to recommend mediation of a suit filed with the court before proceeding with more formal legal proceedings. Mediation helps clear court dockets, and if a settlement can be reached in mediation, both parties can save on legal fees and court costs, as well as the inconvenience of attending court.

How Do I Choose a Mediator if Ordered by a Court?

The jurisdiction determines your field of choices:

Some county, state, and/or district courts require parties to select a mediator from an approved list, usually published online or available from the court clerk.

  • Other courts require mediators to be certified on a local or state level.

  • Some courts contract with a mediation consortium.

  • Lastly, some courts do not require a mediator to be certified and do not require a mediator's pre-approval.

Check with the court clerk to see which category of mediator is appropriate for your jurisdiction.

What is Private Mediation?

Mediation is appropriate when disputing parties recognize that their disagreement is irreconcilable. Both parties are ready to settle but cannot reach an agreement through their own negotiations. However, the parties are not ready to involve attorneys and the courts in the settlement of their conflict. One or both of the parties may consult an attorney regarding the settlement agreement or have an attorney present for the mediation, but it is not required. It can be an impending divorce, a domestic dispute, a commercial or financial issue, or a contractual dispute. For instance, most commercial contracts recommend mediation in the event of a dispute as the first step.

A successfully mediated disagreement can be resolved for a fraction of the cost of a court case. As opposed to months or years, as some court cases require, the resolution window can be as short as a few days. A mediation can often be scheduled in a week or two, rather than over the course of a month or several months. Most mediations are concluded in one or two sessions.

How do I choose a Private Mediator?

Your first step should be to look at what qualifications your state requires for a mediator. The requirements vary from state to state. Some States have a rigorous certification process, while other States have no requirements at all. State certifications generally require completion of a prescribed curriculum, along with experience, at least, of observation of actual mediations.

In Montana, no certification is required, but the Montana Mediation Association (MtMA) (https://mtmediation.org/about-mtma/) is a “professional, non-profit association comprised of certified mediators and other neutrals and individuals dedicated to the principals of informed, consensual resolution of interpersonal conflicts.” The MtMA has a certification process, but again, those credentials aren’t mandatory to mediate in Montana.

If your state requires certification, that should be the first checkpoint. Once past state requirements, look for certifications by other organizations. Finally, an old-fashioned Google search can be revealing. Look for a professional website and any social media accounts. Also, search for recommendations, experience, and other credentials such as a juris doctor degree that is earned by lawyers. Keep in mind though, many mediator will not be lawyers as it is not a requirement of most states and mediators do not give legal advice as part of the mediation process.




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