Civil mediation in California (as opposed to mediation in family law or other cases) is a type of alternative dispute resolution that helps parties try to resolve their cases without having to face the time and expense of trial. Although many people have heard the term “mediation” they often do not know what to expect. There are a number of rules and procedures regarding mediation and understanding these procedures may help ease anxiety before mediation occurs.
Initiating Mediation. Mediation may be initiated at any time. Sometimes the parties may agree to mediation prior to a lawsuit and other times mediation is scheduled after a complaint is filed. Mediation can be initiated by the court or the parties. The court may order mediation if it determines that the case is suitable and may be resolved before trial. The parties can initiate mediation by agreement, for example through a mandatory contract clause, or by a signed stipulation. If the parties agree to mediation by stipulation, the stipulation must be filed not later than 90 days before trial, unless the court permits otherwise.
Once either the court or the parties have initiated mediation, the parties must fill out all required forms and submit them to either the Court’s ADR office or, if the parties decide to use a private mediation service, they must pay the required mediation deposits. Many court’s have information regarding their mediation programs on their web sites. A list of some of those links are here:
On the other hand, some courts, such as those in Los Angeles County, have eliminated ADR all together because of budget cuts.
Selecting A Mediator. The parties must select an “neutral” to act as a mediator. A neutral is a third party, usually an attorney or retired judge, who will hear both sides and try to negotiate an agreement between the parties. The parties can select a court panel neutral or a private neutral.
Court panel neutrals are mediators who have met certain minimum qualifications and are hired by the courts. Court panel neutrals usually have a set price and are cheaper than private neutrals. Court panel neutrals are selected two ways: by a Random Select Panel or a Party Select Panel. If the selection is by a Random Select Panel, an ADR staff member will select a random neutral based on the case criteria. To utilize the Party Select Panel, the parties may enter the case criteria on the court’s website and make their own choice of a particular neutral.
Private neutrals are mediators who are not affiliated with the court’s ADR Department. They are usually more expensive and the parties are responsible for paying the neutral. The parties may agree to choose a private neutral instead of a panel neutral. However, if the parties decide to select a private neutral after initially selecting a neutral from the court’s panel, the parties must immediately notify the ADR Department that the parties will not require the services of the court panel neutral. Although private neutrals cost more, they often spend more time with the parties and may be more flexible about mediation procedures.
Scheduling Mediation. After a neutral has been selected, a Notice of Assignment is sent to the neutral and all parties. The plaintiff is responsible to contact the neutral to schedule the time and place of mediation and learn about the neutral’s expectations in terms of preparation. Mediation must be completed before the mediation completion date, which is assigned by the court and usually within 90 days of the date that the case was referred to mediation.
Continuing Mediation. If the parties request a continuance of mediation before the mediation completion date, the mediator should grant the request if it was made for good cause. However, continuances that will extend mediation beyond the mediation completion date will only be allowed by a court order upon the motion of a party.
Final Steps. If the case settles before mediation occurs, the parties must notify the mediator and the ADR department immediately and no less than two days before mediation was scheduled. Once mediation has been completed, the neutral must submit a Statement of Agreement or Non-agreement, notifying the court that mediation occurred and the parties must submit a survey detailing the mediation session.
If the case settles, the parties must request for a dismissal in order to have future status conferences, mandatory settlement conferences, or trial dates vacated. If the case does not settle after mediation, the parties must continue to proceed with the case and ultimately go to trial.
What Does A Client Need to Do to Prepare for Mediation? Your attorney will usually submit a mediation brief prior to the mediation. You should let the attorney know all the strengths, weaknesses and facts of your case. At the mediation itself, however, the client need not speak to anyone but their attorney. You will probably be placed in a separate room away from the other parties and their attorney and the mediator will move from room to room conveying settlement proposals. The client’s job at a mediation is to listen and be open minded.
This blog was research and partially written by Kristal Bradford, a former associate with Adina T. Stern, a Professional Law Corporation.
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