ADR Frequently Asked Questions
In mediation, a neutral third party called a "mediator" helps participants in the dispute create their own resolution. The mediator makes no decision or findings about the facts of the case and makes no award. Rather, the mediator helps facilitate a discussion in which the parties reach a mutually agreed upon settlement. Therefore, mediation allows for more creative resolutions to disputes than continued litigation and/or arbitration.
To accomplish this, mediators foster communication among the parties to:
Sometimes mediation does not result in an agreement or resolution. In these cases, the parties have the right to return to court for a litigated decision. If the case returns to court, the mediator cannot be called to testify or produce notes or records of the mediation, as the rules of evidence are not the same for mediation as they are for litigation.
While not all mediators are attorneys, the mediators on the Court's panel have received training or have the experience required by California law to be mediators for the Court.
Where the parties have requested mediation and the Court determines the suitability of a case for mediation, the Court then directs the attorneys or parties to the ADR administrator's office to initiate the process. This process begins with the attorneys or parties:
Once the completed Intake form has been delivered to the ADR administrator, the parties may obtain a mediator by:
After the parties have notified the ADR administrator of their selection (or the court has performed a random selection), the ADR administrator will issue a Notice of Appointment of Mediator, sending a copy to the selected Mediator and all parties or their attorney of record.
The appointed Mediator contacts the parties/attorneys within 10 days of the Notice of Appointment.
The cost varies, depending upon whether the parties/attorneys select a mediator from the Court's "Random Select" or "Party Select" panel or choose a private mediator. The mediators on the Court's "Random Select" panel have agreed to provide up to three (3) hours of hearing time per case without compensation by the parties/attorneys.
For any additional hours, compensation will be negotiated between the parties and mediator and will be the responsibility of the parties.
The mediators on the Court's "Party Select" panel shall confer with the parties and agree on the fees and expenses of the mediation, which will be the responsibility of the parties.
The mediation is normally arranged through the mediator at a neutral location.
The time for Mediation varies, depending upon the complexity of the case. Most cases require only one meeting to come to a resolution, but some cases may require additional sessions. Mediation should be completed within 60 days of the Notice of Appointment of Mediator. That period may be extended up to 30 (thirty) days by the Court upon showing of good cause. [CRC §3.896]
If a settlement occurs prior to the scheduled Mediation, counsel for the parties/ or the parties themselves, must notify the mediator and the ADR administrator immediately and in no case less than 2 days prior to the time set for hearing. [CRC §3.1385]
Local Rules require that all parties and decision makers must be present. [LR §6.17]
The Mediator is an impartial, neutral intermediary, whose role is to help the participants reach a settlement. The mediator will not impose a settlement, but will assist the parties in exploring settlement options. The Mediator does not communicate with the Court except to file a Statement of Agreement/Non Agreement.
Counsel and clients should be prepared to discuss all relevant issues. Before the meeting, clients and counsel should discuss the mediation process and understand it is confidential and non-binding. As part of the preparation, counsel are encouraged to discuss with their clients a complete and reasonable litigation budget, without downplaying the costs of proceeding to trial.
Counsel and clients should be prepared both to state their own position and to listen carefully to that of the other side. Persuasive and forceful communication is encouraged, but civility and mutual respect is vital. Hostile or argumentative tactics are likely to cause positions to become deep-rooted and thus discourage progress.
LR §6.18 requires that parties prepare and give information about their case to the mediator. Parties may use the local court form entitled Mediation Statement [RUL-6-ADR.010] or use their own paper to address the topics outlined in LR §6.18(b).
Each mediator has their own technique and work style when conducting mediations. However, the following is an example of how a mediation session may be conducted:
The mediator's opening statement discusses the process, the stages, the mediator's role and the confidentiality requirements. All present will be required to sign a confidentiality agreement specifically agreeing to hold confidential all discussions in mediation. [CCP §1775.10; §1775.12; Evidence Code §1122]
Each party will present its uninterrupted opening statement setting forth its position regarding the facts and the law.
After the opening statement, the mediator and parties may ask each other questions or respond to the opening statements. Most mediators will allow this process to continue as long as it appears to be useful.
Thereafter, the mediator will usually call for a private discussion with each side, sometimes called a caucus. During this time, statements previously made in the joint sessions are explored more fully.
In private discussion, clients and counsel should assist the mediator in understanding the issues and interests at stake. The parties may wish to disclose confidential information to the mediator during these discussions. The mediator will help the parties and counsel to see the strengths, weaknesses, positions, arguments, risks and possibilities of their case.
Either in private discussion or joint session, the mediator may assist the parties in generating and exchanging proposals for settling the case. When the parties reach a settlement agreement, all essential terms will be reduced in writing which will be an enforceable contract if the parties so agree. [Evidence Code §1123]
Although the parties are urged to exercise restraint with respect to conducting discovery while in mediation, any party who participates in mediation retains the right to obtain discovery. [CCP §1775.11; LR §6.19]
No. However, a neutral location is highly desirable.
Please reduce any agreement reached at Mediation to writing.
Mail the original Statement of Agreement/Non Agreement to the Court with Proof of Service of copy sent to parties/counsel(s) of record. [Judicial Council Form: ADR-100]