Mediation is a process in which "a neutral third person
with no decisionmaking power intervenes in the dispute to help
the litigants voluntarily reach their own agreement." [Jeld-Wen,
Inc. v. Sup.Ct. (Marlborough Develop. Corp.) (2007) 146 Cal.App.4th
536, 540, 53 Cal.Rptr.3d 115, 117]
Certain programs allow courts to order cases into mediation as
an alternative to judicial arbitration. Other programs merely
encourage voluntary mediation:
The Civil Action Mediation Program is a court-ordered program.
[Ca Civ Pro §§ 1775-1775.15] (The program does not
preempt other existing or future ADR programs in the trial courts;
Ca Civ Pro § 1775.13.)
Only Los Angeles County courts are required to participate
in the program, although others may elect to do so. [Ca Civ
Pro § 1775.2; Ca Rules of Court Rule 3.870] Other counties
have elected to participate, including:
• Nevada County courts (see Nevada Coord. Rule 4.00.10.E).
• San Diego County courts
• Shasta County courts (see Shasta Sup.Ct. Rule 5.10(E)).
Cases Affected: Courts may order to mediation
any case in which the amount in controversy does not exceed
$50,000 for each plaintiff, without regard to questions of liability,
defenses or comparative negligence. [Ca Civ Pro §§
1775.3, 1775.5; Ca Rules of Court Rule 3.871(a)(1)]
Any other action, regardless of the amount in controversy,
may be submitted to mediation if all parties so stipulate. [Ca
Rules of Court Rule 3.871(a)(2)--stipulation may be made up
to 90 days before trial; see also L.A. Sup.Ct. Rule 12.16--if
stipulation precedes first status conference, parties may select
mediator from court's list or use a mediator of their own choosing]
Cases Is Appropriate For Mediation: Amenability
to mediation shall be determined on a case-by-case basis, rather
than categorically. [Ca Rules of Court Rule 3.871(b)] The court's
determination must be made after considering the views expressed
by the parties. Generally, such determinations may be made on
the basis of the pleadings or other information presented to
the court, after considering the views expressed by the parties
on amenability of the case to mediation. [Ca Rules of Court
Rule 3.871(a)(1)]
Los Angeles Procedure: In Los Angeles, the
court determines the suitability of a case for mediation or
arbitration. The court confers with counsel as to whether
mediation or arbitration offers the better likelihood of disposition
of the case without further proceedings. The court will normally
set the dates for completion of the arbitration or mediation
and for a further status conference thereafter. [L.A. Sup.Ct.
Rule 12.2]
Time For Mediation: There is no fixed time
at which mediation may be ordered . . . except that any stipulation
to mediation must be filed no later than 90 days before trial
unless the court permits a later time. [Ca Rules of Court Rule
3.871(a)(2)]
Generally, submission to mediation does not affect "fast
track" time periods for case disposition (Ca Govt §
68600 et seq.). [Ca Rules of Court Rule 3.876(a)] However, if
the parties so stipulate in writing, "fast track"
deadlines may be extended for up to 90 days to permit mediation.
[Ca Rules of Court Rule 3.876(b)]
Selection Of The Mediator: Unless the parties
stipulate to a mediator, the mediator will be appointed from
a panel maintained by the court in consultation with local bar
associations and ADR providers. [See Ca Civ Pro § 1775.6;
Ca Rules of Court Rule 3.872-3.873; L.A. Sup.Ct. Rule 12.3]
Mediators need not be lawyers or judges. But they must have
either 25 hours of classroom mediation training or 25 hours
of actual "dispute resolution experience" (see 16
Ca Adc § 3622). [Ca Rules of Court Rule 3.872]
The parties may stipulate to selection of a mediator within
15 days after the case is submitted to mediation. If they are
unable to agree on a mediator within the 15-day period, the
court will "promptly" appoint a mediator. [Ca Rules
of Court Rule 3.873] In any event, the mediator must be selected
within 30 days after the case is submitted to mediation. [Ca
Civ Pro § 1775.6]
A party may request disqualification of the mediator within
5 days after the mediator's appointment on any ground that would
disqualify a judge (see Ca Civ Pro § 170.1). [See L.A.
Sup.Ct. Rule 12.6] f the mediator refuses to disqualify himself
or herself, a party may move the court for an order vacating
the appointment. [See Ca Rules of Court Rule 3.816(d)--applicable
to arbitrators]
Mediator's Fee: The mediator's fee is paid
by the court, not by the parties. Court-appointed mediators
are paid the same as court-appointed arbitrators and out of
funds available for judicial arbitration (Ca Civ Pro §
1141.28(a)). The mediator's fee is payable upon conclusion of
the mediation. [Ca Civ Pro § 1775.8(a)]
Mediators are presently expected to serve for free and to spend
no more than 2 hours per session. The mediator generally begins
to charge an hourly fee after 2 hours.
Before commencing the mediation, the mediator must disclose
to the parties in writing any fees, costs or charges to be paid
to the mediator by the parties. A mediator must abide by any
agreement that is reached concerning compensation. [Ca Rules
of Court Rule 3.859(c)]
Mediation Sessions: The parties must appear
in person at the first mediation session and, unless excused
by the mediator, at any subsequent session. [Ca Rules of Court
Rule 3.874; see also L.A. Sup.Ct. Rule 12.15]
f the party is a corporation or association, it must appear
by a representative with authority to resolve the dispute; if
a governmental entity, by a representative with authority to
recommend settlement to the elected official or legislative
body having authority to settle. [Ca Rules of Court Rule 3.874]
Where a party has insurance coverage, an insurance representative
shall also be present at each session unless excused by the
mediator. [Ca Rules of Court Rule 3.874]
Mediation Briefs: Ordinarily, a mediation
statement or brief is presented to the mediator in advance of
the hearing, outlining the procedural posture of the case, disputed
and undisputed facts, applicable law, itemized damages, and
the settlement picture.
Time For Completion Of Mediation: Mediation
must be completed within 60 days after reference to the mediator.
But for "good cause," the court may extend this period
for up to 30 days. [Ca Rules of Court Rule 3.876(b)]
Results Of Mediation Reported To Court: Within 10 days after
conclusion of the mediation, the mediator must file a "Statement
of Agreement or Nonagreement" with the court, advising
whether settlement has been reached as to the entire case or
as to particular parties. [Ca Civ Pro § 1775.9; Ca Rules
of Court Rule 3.875] To assure confidentiality, the mediator
may not provide any additional information to the court. [Ca
Evid § 1121]
