12.0 APPLICABLE LAW AND RULES
This chapter covers judicial arbitration, civil action mediation, trials before temporary judges, and references by consent of the parties. Counsel should ensure compliance with all Trial Court Delay Reduction set forth in Chapter 7. It does not apply to contractual arbitration pursuant to Code of Civil Procedure section 1280 et seq.
(Rule 12.0 [1/1/95, 1st ¶ 3/1/96] amended and effective 1/1/2003.)
Counsel utilizing these procedures must familiarize themselves with the applicable statutes and California Rules of Court. For judicial arbitration such provisions are Code of Civil Procedure sections 1141.10 to 1141.31 and California Rules of Court, Rules 3.810 to 3.829 plus Rule 7.9(b)(2) of these Rules; for mediation such provisions are Code of Civil Procedure section 1775 through section 1775.16 and California Rules of Court, Rules 3.870 through 3.878; for trials before temporary judges such provisions are Article VI, Section 21 of the California Constitution and California Rules of Court, rule 2.831; for references by consent of the parties such provisions are Code of Civil Procedure section 638 and California Rules of Court, rule 3.900 et seq.
(Rule 12.0 [1/1/95, 3/1/96] 2nd ¶ amended and effective 1/1/08.)
As provided by Rule 3.811 of the California Rules of Court, the following actions are exempt from ADR:
a. Actions that include a prayer for equitable relief that is not frivolous or insubstantial.
b. Class actions.
c. Small Claims actions or trial de novo on appeal.
d. Unlawful Detainer proceedings.
e. Any action found by the Court to be not amenable to arbitration or mediation on the ground that arbitration or mediation would not reduce the probable time and expense necessary to resolve the litigation will be exempt from mediation or arbitration. Upon its own motion or by any party, the Court may determine whether the action is or should be exempt from arbitration or mediation.
In addition to those actions exempted from arbitration by Rule 3.811 or any action exempted from arbitration or mediation by Rule 3.735 of the California Rules of Court all limited civil cases in which no jury trial is demanded and the estimated time for trial is less than three days (15 hours judicial hearing time), shall be excluded from mandatory arbitration or mediation. Any case, however, may be arbitrated or mediated upon written stipulation of the parties, upon written request of the plaintiff, or upon order of the Court. When no preference is expressed by litigants or there is no consensus to the selected ADR process, mandatory referral to mediation will be made.
(Rule 12.0, 4th, & 5th ¶¶ numbered "e." 3/1/01, 1/1/03, 7/1/03]
amended and effective 1/1/08.)
f. Pursuant to Code of Civil Procedure section 1775.4, an action ordered into arbitration may not be ordered into mediation and an action that has beenordered into mediation may not be ordered into arbitration. If an action has previously been referred to the Court ADR program and an ADR hearing was scheduled, the action cannot be ordered/referred again.
(Rule 12.0"f." added and effective 1/1/03.)
g. Pursuant to California Rules of Court, rule 3.720 et seq., a short cause action is exempted from ADR.
(Rule 12.0"g." [added 1/1/03] amended and effective 1/1/08.)
(Rule 12.0 [1/1/95, 3/1/96, 3/1/2001, 1/1/03, 7/1/03] amended and effective 1/1/08.)
RULES APPLICABLE TO BOTH ARBITRATION AND MEDIATION
12.1 ADR ADMINISTRATOR
Management of Superior Court judicial arbitration and mediation is conducted generally under the supervision of the ADR Administrator, who is appointed by the Presiding Judge of the Court. The administrator’s principal office is located in the Central District Courthouse, Room 113. The administrator also maintains offices in each district courthouse. A representative of the administrator, designated as ADR Clerk, is found in each such district.
(Rule 12.1 [1/1/95, 11/01/00, 1/01/2001] renamed, amended
and effective 1/1/2003.)
12.2 ADR
ORDERS AND FURTHER STATUS CONFERENCE
The Court shall determine on a case-by-case basis the
suitability of a particular case for mediation or arbitration.
The Court shall confer with counsel as to whether mediation or
arbitration offers the better likelihood of final disposition
of the case without further proceedings. Counsel are
encouraged to discuss the various ADR processes with their
clients and explain the confidentiality and non-binding nature
of the selected ADR process. Whenever the Court orders
arbitration or mediation, it will set the dates for completion
of such arbitration or mediation and a further status
conference following such completion dates.
(Rule 12.2 [1/1/95] title & text amended and effective
1/1/2003.)
12.3 SELECTION OF ADR NEUTRAL
When a case is referred to arbitration or mediation, counsel shall proceed immediately to the ADR Administrator's office to complete the ADR forms prior to selecting an arbitrator or mediator from the Court's panel. The ADR Administrator shall maintain a panel of arbitrators and mediators which shall be composed of active members of the State Bar and retired judges of courts of record, and in addition shall include lay mediators. In the event the parties exercise their right to select an arbitrator or mediator who is not on the Court's panel (Cal. Rules of Court, rules 3.812, 3.873), it shall be the responsibility of plaintiff's counsel to immediately notify the ADR Office that the parties will not require the services of the arbitrator or mediator previously selected from the Court's panel. The arbitrator or mediator's name will be returned to the Court ADR active panel.
(Rule 12.3, 1st ¶ [1/1/95, 1/1/2001, 1/1/2003] amended and effective 1/1/08.)
Pursuant to California Rules of Court, rule 3.815, the ADR Office in limited civil cases will randomly assign an arbitrator or mediator.
(Rule 12.3, 2nd ¶ [added 3/1/2001] amended and effective 1/1/08.)
(Rule 12.3 [1/1/95, 1/1/2001, 3/1/2001, 1/1/2003] amended and effective 1/1/08.)
12.4 ADR REPORTS
(a) Reports To Be Filed. In
arbitrated cases, the arbitrator shall file with the ADR clerk
and serve on each party the Award of Arbitration within five
court days after the arbitration hearing. In mediated cases,
the mediator shall file with the ADR clerk, and serve on the
other parties and on the ADR Administrator, within ten days
after the completion date for the mediation set by the Court,
a Statement of Agreement or Non-Agreement (Judicial Council
Form 100). When a case is referred to ADR without an
appearance, plaintiff or plaintiff’s counsel must contact the
ADR Office to initiate the ADR process. Upon completion of the
ADR forms, selection from the Court ADR panel will be made.
(Rule 12.4(a) [7/1/97, 1/1/2001] amended and effective
1/1/2003.)
(b) Information Form. In
both mediated and arbitrated cases, within ten (10) days
after completion of the arbitration or mediation, the parties
shall complete and file with the ADR Administrator’s office an
ADR Information Form (Judicial Council Form 101) or
follow-up survey form approved by the Administrative Office of
the Courts.
(Rule 12.4 [1/1/95, 7/1/97, 1/1/2001] amended and effective
1/1/2003.)
12.5 NOTICE OF SETTLEMENT
Reference California Rules of Court, rule 3.1385. If a case is settled, plaintiff or the plaintiff's counsel must immediately serve a copy of written notice of the settlement or other disposition on any ADR Neutral involved in the case and the ADR Clerk. The plaintiff must also immediately give oral notice to all of the above if a hearing, conference, or trial is imminent. If the plaintiff or other party seeking affirmative relief does not notify the court-connected ADR neutral involved in the case of a settlement at least 2 days before a scheduled hearing or session, the court may order the party to compensate the neutral. The amount of compensation may not be less than $150 and may not exceed $450.
The Application and Motion for Compensation must be filed by the neutral within 5 court days of the scheduled hearing or session. If a dismissal has been filed, the court maintains jurisdiction to hear the Application and Motion for Compensation.
(Rule 12.5 [1/1/95, 1/1/98] title amended, old text repealed, new text added 1/1/2003, 1/1/05] amended and effective 1/1/08.)
12.6 (RESERVED)
(Rule 12.6 VACANCY AND CHALLENGE OF ADR NEUTRAL [1/1/95, 1/1/2001, 1/1/2003] REPEALED and effective 1/1/08.)
RULES APPLICABLE TO ARBITRATION
12.7 INITIATION OF ARBITRATION
Arbitration can be initiated by court order at any time
after the filing of the complaint and before the first case
management conference in any of three ways: (a) Upon timely
written election of the plaintiff, where the plaintiff agrees
that the award per plaintiff shall not exceed $50,000; (b)
Upon timely stipulation of the parties, the stipulation need
not designate the upper limit of the potential award and any
amount in controversy may be submitted; (c) Where the judge
determines the controversy is amenable to arbitration pursuant
to Code of Civil Procedure section 1141.10 et seq. Except
where the case is in arbitration per (a) above, the
arbitrator’s award is not limited to $50,000 but may be for
any amount.
(Rule 12.7 [1/1/95, 3/1/96] amended and effective
1/1/2003.)
12.8 WITHDRAWAL FROM ARBITRATION
A case submitted to arbitration may only be withdrawn before hearing by stipulation and court order or court order on noticed motion heard in the department where the case is pending.
(Rule 12.8 effective 1/1/95.)
12.9 PRE-HEARING CONFERENCE
If the arbitrator finds it helpful to confer with the attorneys informally before the hearing begins, a pre-hearing conference should be convened. Attendees at such hearing should be prepared to discuss: (1) time estimate for hearing, (2) documentary evidence to be offered, (3) stipulations, (4) issues to be determined, and (5) depositions to be used. This conference may be conducted by telephone if deemed appropriate by the arbitrator.
(Rule 12.9 effective 1/1/95.)
12.10 SETTING TIME AND PLACE OF ARBITRATION HEARING APPEARANCES REQUIRED
Consistent with California Rules of Court, rule 3.821, the Arbitrator shall set the time and place for the hearing after consultation with counsel for the parties. However, the arbitrator must ensure that the time for the hearing is set so as to allow the completion of the arbitration by the date ordered by the Court. Normally the arbitration should be held at the offices of the arbitrator. However, in appropriate circumstances the arbitrator may order that the hearing be held at the offices of one of the parties' counsel.
Appearance by counsel, or party if not represented by counsel, is required at the arbitration session. Non-appearance of counsel or party shall subject counsel or party, after notice and an opportunity to be heard, to monetary sanctions, including, but not limited to, suitable compensation to the arbitrator and to the parties who did appear at the arbitration, plus attorney's fees to make the request for sanctions.
(Rule 12.10 [1/1/95, 1/1/98] amended and effective 1/1/08.)
12.11 CONTINUANCE OF HEARING
The parties may stipulate to a continuance of the hearing as provided for in California Rules of Court, rule 3.817. In addition, on the arbitrator's own motion, the arbitration may be continued provided that the continuance granted shall not at any one time exceed 20 days. In no event shall the hearing be continued beyond the date ordered by the Court for completion of the arbitration except by order of the Court.
(Rule 12.11 [1/1/95] amended and effective 1/1/08.)
12.12 INTERPRETERS
Any party wishing an interpreter shall notify the ADR Clerk, all other parties and the arbitrator at least ten days before the hearing date or at the pre-hearing conference whichever is earlier. In addition, unless otherwise ordered by the Court the party seeking the use of the interpreter shall make all arrangements directly with the interpreter and shall assume the costs of the service.
(Rule 12.12 [1/1/95, 1/1/2001] amended and effective 1/1/2003.)
12.13 DESIGNATION OF PARTIES AND AMOUNTS IN AWARD
Consistent with California Rules of Court, rule 3.825, the arbitrator's award must be filed on or before the completion date set by the Court.
(Rule 12.13 [1/1/95, REPEALED in part 7/1/98] amended and effective 1/1/08.)
12.14 DISPOSITION OF EXHIBITS
Documents, statements, and exhibits received in evidence during the hearing should be returned after the award to the parties who offered them. Many arbitrators request that the parties offer copies in evidence so that the arbitrator can discard them after the award has been made. No original exhibits should be destroyed by the arbitrator, since they may be required in the event of a trial de novo.
(Rule 12.14 effective 1/1/95.)
RULES APPLICABLE TO MEDIATION
MEDIATION PROCEDURES
12.15 APPEARANCES REQUIRED AT MEDIATION
The parties shall personally appear at the first mediation session, and at any subsequent session unless excused by the mediator. When the party is other than a natural person, it shall appear by a representative with authority to resolve the dispute or, in the case of a governmental entity that requires an agreement to be approved by an elected official or legislative body, by a representative with authority to recommend such an agreement. Each party is entitled to have counsel present at all mediation sessions that concern it, and such counsel and an insurance representative of a covered party also shall be present or available at such sessions, unless excused by the mediator.
(Rule 12.15 [1/1/95, 1/1/98] 2nd ¶ REPEALED and effective
1/1/2003.)
12.16 STIPULATION TO MEDIATION
At any time after the filing of the
complaint and before the first case management conference, if all parties stipulate that the case be assigned to mediation, the case shall be assigned to mediation. Where parties stipulate in writing to mediation in advance of the case management conference upon completion of the required ADR forms, a mediator may be randomly selected from the Court ADR panel (see LASCR, Rule 12.3) either by personal appearance of counsel at the ADR Office, or by phone. In the alternative, the parties may use a mediator of their own selection not on the Court’s panel.
(Rule 12.16 [1/1/95, 1/1/2001] amended and effective
1/1/2003.)
12.17 DISCOVERY DURING MEDIATION
During the period that a matter has been referred to mediation, the parties are urged to exercise restraint with respect to conducting discovery. In an appropriate case, a protective order pursuant to Code of Civil Procedure section 2017(c) and related provisions may be issued by the court.
(Rule 12.17 effective 1/1/95.)
RULES APPLICABLE TO BOTH TRIALS BEFORE TEMPORARY JUDGES AND REFERENCES BY CONSENT OF THE PARTIES
12.18 PROCEEDINGS TO BE OPEN TO THE PUBLIC
All proceedings before a temporary judge or referee shall be open to the public, with no restriction on attendance that would not be applicable if the proceedings were held in a courthouse. The stipulation for appointment of temporary judge or agreement to a reference shall set forth the name and telephone number of a person to contact to arrange for attendance at any proceeding that would be open to the public if held in a courthouse. A notice containing such name and address shall be posted by the clerk as required by California Rules of Court, rules 2.831 and 3.900 et seq.
(Rule 12.18 [3/1/96] amended and effective 1/1/08.)
12.19 COURT'S FILES TO REMAIN OPEN FOR PUBLIC'S INSPECTION
The court's files shall not be removed from the courthouse and will remain as available for public inspection as they would be if the case were being tried and the matter heard by the court.
(Rule 12.19 effective 3/1/96.)
12.20 SEALING ORDERS AND CONFIDENTIALITY AGREEMENTS
Motions for sealing orders or approval of confidentiality agreements are to be made to the presiding judge or supervising judge, not to the temporary judge or referee.
(Rule 12.20 [3/1/96] amended and effective 1/1/2003.)
12.21 HEARINGS
The scheduling of hearings before the temporary judge or referee shall be arranged by the parties directly with such temporary judge or referee, and the court shall not participate therein. Copies of all relevant documents filed in the matter shall be furnished to the temporary judge or referee by filing party.
(Rule 12.21 effective 3/1/96.)
RULES APPLICABLE TO TEMPORARY JUDGES
12.22 RESERVED
(Rule 12.22 [3/1/96] PRESCRIBED FORM FOR STIPULATION AND ORDER FOR APPOINTMENT OF TEMPORARY JUDGE REPEALED 7/1/98.)
12.23 MATTERS TO BE AGREED UPON IN ORDER TO STIPULATE TO APPOINTMENT OF TEMPORARY JUDGE
Before submitting the stipulation to the court, the parties must agree upon a privately compensated temporary judge to try the case, obtain the agreement of said temporary judge to do so and fix a date by which all proceedings within the jurisdiction of this court shall be completed.
(Rule 12.23 effective 3/1/96.)
12.24 SUBMISSION OF STIPULATION
The stipulation and proposed order for appointment of a privately compensated temporary judge shall be submitted to the courtroom of the Supervising Judge of the Civil Departments of the Los Angeles Superior Court, Department 1, at 111 No. Hill Street, Los Angeles, California, pursuant to California Rules of Court, rule 2.831.
(Rule 12.24 [3/1/96, 1/1/07] amended and effective 1/1/08.)
12.25 REPRESENTATIONS BY THE STIPULATING PARTIES
By submitting the stipulation and proposed order to the court, the stipulating parties and their attorneys represent to the court: (1) that they are the only parties to the case; (2) that no new parties will be added.
(Rule 12.25 effective 3/1/96.)
12.26 APPLICATION OF TRIAL COURT DELAY REDUCTION RULES TO PROCEEDINGS BEFORE TEMPORARY JUDGES
Upon the signing of the proposed order by the presiding judge or supervising judge, the action shall be exempt from the trial court delay reduction rules of this Court, pursuant to Local Rule 7.2(b)(7). Until such order is signed, the case remains fully subject to said rules and to all other applicable rules of this Court, and all previously ordered deadlines, hearings, and other orders made in the case remain in full force and effect.
(Rule 12.26 [3/1/96] amended and effective 1/1/2003.)
12.27 DEADLINE FOR COMPLETION OF PROCEEDINGS BEFORE TEMPORARY JUDGE
The date upon which all proceedings within the jurisdiction of this Court shall be completed, as agreed to by the parties and approved by the presiding judge or supervising judge, shall constitute an order of the Court to complete all such proceedings by said date. Said order is directed to all parties, their attorneys, and to the temporary judge. Said date shall not be extended except by order of the presiding judge or supervising judge as the case may be, and violation of said order will be sanctionable under California Rules of Court, rule 2.30.
(Rule 12.27 [3/1/96] amended and effective 1/1/08)
12.28 USE OF PUBLIC FACILITIES
The presiding judge may permit a temporary judge to use public facilities, when they are available, upon payment of a reasonable fee set by the presiding judge.
(Rule 12.28 effective 3/1/96.)
12.29 EXHIBITS
All exhibits shall be as available for public inspection as they would be if the case were being tried by the court. Upon final determination of the cause by the temporary judge, all exhibits shall be delivered to the Executive Officer/Clerk properly marked and with proper exhibit receipt form completed, unless a written stipulation for the return or disposal of such exhibits has been approved by the temporary judge and filed.
(Rule 12.29 effective 3/1/96.)
12.30 FILING OF ORIGINAL PAPERS AND ORDERS OF TEMPORARY JUDGE
All original papers are to be filed with the Executive Officer/Clerk within the same time and in the same manner as would be required if the case were being tried by the court. Signed orders of the temporary judge are to be presented for filing to the Assistant Division Chief in Room 109 of the County Courthouse if the case is pending in the Central District, and to the person designated by the supervising judge if the case is pending in another district. Minute orders will not be accepted unless they are signed by the temporary judge. If the minute order format is used, the order must set forth the name, address, telephone number, and CSR number of any privately retained court reporter or, if electronic reporting is used, the minute order shall so state.
(Rule 12.30 effective 3/1/96.)
RULES APPLICABLE TO REFERENCES BY AGREEMENT
12.31 REFERENCE SUBJECT TO APPROVAL BY COURT
A written agreement for an order directing a reference is subject to approval by the court, and the court, in its discretion, may refuse to approve the reference.
(Rule 12.31 effective 3/1/96.)
12.32 ISSUES TO BE SPECIFIED
If the issues to be referred are less than all of the issues in the case, the agreement and the proposed order shall either (1) enumerate each issue to be determined by the referee or (2) state that the referee is to decide all issues except those enumerated, which are reserved for decision by the court.
(Rule 12.32 effective 3/1/96.)
12.33 DEADLINE FOR COMPLETION OF REFERENCE
The date by which the decision of the referee shall be reported to the Court shall not be extended except by order of the Court, and all proceedings before the referee shall be scheduled and conducted in such time and in such manner that said date shall be met. Failure to complete the reference by said date shall be sanctionable under California Rules of Court, rule 2.30.
(Rule 12.33 [3/1/96, REPEALED in part 7/1/98] amended and effective 1/1/08.)
EARLY MANDATORY MEDIATION PILOT PROGRAM
12.34 APPLICATION
Los Angeles County has been selected to participate in a Mandatory Mediation Pilot Program authorized by Code of Civil Procedure section 1730 et seq. In addition to the Los Angeles Superior Court Rules 12.0, 12.1, 12.3, 12.5, 12.6, 12.15 and 12.17, the following rules apply to those cases selected by the court for inclusion in this pilot program.
In all cases assigned to participate in the pilot, mediation program information will be provided to counsel at the time of filing a new complaint. In addition, to the summons and complaint, mediation materials must be served on all parties. Filing the Certificate of Service pursuant to Los Angeles Superior Court Rules, Rule 7.12(b), will signify that the mediationinformation has been served on all defendant(s).
(Rule 12.34 [new 3/1/2001] amended and effective 1/1/08.)
12.35 EARLY MEDIATION STATUS CONFERENCE
The court may notify parties by court order that their case has been selected for inclusion in the Mandatory Mediation Pilot Program. The court may order the parties to appear at an Early Mediation Status Conference.
All parties ordered to attend an Early Mediation Status Conference (EMSC) shall serve and file an EMSC Statement no later than five (5) calendar days before the conference date. The EMSC Statement must be on a form approved by this court.
The court may vacate or continue the EMSC date and excuse the parties from filing an EMSC Statement if a Stipulation to Participate in Mediation is filed by the parties within the deadline specified in the court order. The Stipulation must be on a form approved by this court.
(Rule 12.35 new and effective March 1, 2001.)
12.36 MEDIATORS
(a) The court will maintain a roster of court-approved mediators referred to as the Court ADR Panel. Mediators are required to show evidence of:
1) at least thirty (30) hours of mediator training,
2)completion of at least 8 mediations (each lasting at least two hours within the past 3 years), and
3)complete 4 hours of continuing education in an ADR course approved by a continuing education provider.
(b) All Court Mediators must:
1)Agree to abide by the court's reimbursement policy and procedure;
2)Agree to conform to the court's Standards of Professional Conduct for Mediators;
3)Comply with the court's rules and procedures for implementing the Mandatory Mediation Pilot Program, as determined by the ADR Committee and ADR Administrator.
(c) Non-Panel Mediators may be utilized, however:
1)If the parties choose to use a non-panel mediator, the judge must authorize a non-panel mediator at the time of referral and the parties shall be responsible for the mediator's compensation.
2)Non-panel mediators may request compensation from the court.
3)The court will consider each request on a case by case basis.
4)In no case will the compensation be greater than what the court would pay a panel mediator.
5)Request for court compensation shall be accompanied by a completed ADR Form 100.
(Rule 12.36 new and effective March 1, 2001.)
12.37 MEDIATION REPORT
In all cases participating in the pilot program, within 10 days after the completion of the mediation, the parties shall complete and file with the ADR Administrator an ADR Information Form.
(Rule 12.37 new and effective March 1,
2001.)
EARLY NEUTRAL EVALUATION PILOT PROGRAM
RULES 12.38 THROUGH 12.49
12.38 APPLICATION
The Superior Court of California, County of Los Angeles, received a grant from the Judicial Council to develop an Early Neutral Evaluation ("ENE") program. ENE under the court's auspices will provide the parties and their counsel, on a voluntary basis and in a confidential session, the opportunity to make summary presentations of their claims and defenses, including key evidence as developed, and receive a non-binding evaluation by an experienced neutral lawyer with subject matter expertise. The evaluator will also help identify areas of agreement, offer case-planning suggestions and, if requested by the parties, provide settlement assistance.
ENE program information will be provided to counsel at the time of filing a new complaint. The ENE materials must be served on all parties with the summons and complaint. Filing the Certificate of Service pursuant to Los Angeles Superior Court Local Rules, rule 7.12(b), will signify that the ENE information has been served on all defendant(s).
In addition to the Los Angeles Superior Court Local Rules, rule 12.1, the following rules apply to those cases in the ENE program.
(Rule 12.38 newly added 7/1/06.)
12.39 ELIGIBLE CASES
All civil cases that meet the established criteria in the departments participating in the ENE program may be eligible for ENE subject to the availability of an evaluator with the appropriate subject matter expertise. Cases with the following characteristics may be particularly appropriate for ENE:
· Counsel or the parties are far apart on their views of the law and/or value of the case;
· The case involves technical or specialized subject matter, and it is important to have a neutral with expertise in that subject;
· Communication across party lines (about merits or procedure) could be improved;
· Equitable relief is sought and the parties, with the aid of a neutral expert, might agree on the terms of an injunction or consent decree; and/or
· The parties wish to communicate with each other about the case, but are not readyto discuss settlement.
(Rule 12.39 newly added 7/1/06.)
12.40 EVALUATORS
The Court will select and maintain a panel of evaluators. Evaluators are required to have the following qualifications:
(1) A minimum of ten years legal experience,
(2) Experience with civil litigation,
(3) Demonstrated subject matter expertise,
(4) Completion of the court orientation and training program,
(5) Two references concerning the evaluator's litigation and subject matter expertise,
(6) Be a member in good standing with the State Bar, and
(7) Agree to comply with the Court's ENE procedures and other Court rules and policies.
(Rule 12.40 newly added 7/1/06.)
12.41 INITIATION OF PROCESS
ENE may not be ordered; it is available on a voluntary basis only. If the case meets the eligibility criteria, the parties may, at any time, prompt a referral to the ENE process by filing the Stipulation to Participate in ADR. (ADR - 001 form.)
Upon receipt of the Stipulation in a suitable case, the Court may refer the parties to ENE (the "ENE Referral"). When a case is referred to ENE, counsel are required to immediately complete and submit immediately to the ADR Office the required ADR forms, prior to selecting an evaluator from the Court's panel. The parties may choose from the Court's ENE Panel an available neutral evaluator with expertise in the substantive legal area of the lawsuit and no apparent conflict of interest.
Once the parties have selected an evaluator, the ADR staff will immediately send a notice of assignment to the evaluator and the parties.
(Rule 12.41 newly added 7/1/06.)
12.42 SETTING TIME AND PLACE OF HEARING APPEARANCES REQUIRED
The Evaluator shall serve the Notice of ADR Hearing on all parties and the ADR Office within fifteen (15) days of the date of the notice of assignment. Notice of any continuance or cancellation of the session must also be served on all parties and the ADR Office.
The ENE session shall be held within 90 days of the date of the notice of assignment.
The parties shall personally appear at the ENE session, unless all parties and the evaluator specifically agree otherwise before the session. When a party is other than a natural person, it shall appear by a representative who is knowledgeable about the facts of the case and has authority to resolve the dispute. In the case of a governmental entity that requires an agreement to be approved by an elected official or legislative body, that entity shall appear by a representative who is knowledgeable about the facts of the case and has authority to recommend such an agreement. Representatives of insurers with decision-making authority must attend, unless personal attendance is excused by the evaluator.
(Rule 12.42 newly added 7/1/06.)
12.43 CONTINUANCES
Requests for continuances may not exceed 20 days and may be granted only for good cause found by the evaluator. In no event shall the ENE session be continued beyond the completion date ordered by the Court except by order of the Court.
Requests for extension of the deadline for conducting an ENE session shall be made by motion filed with the Court no later than ten (10) days before the court completion date, with a copy served on the other parties, the evaluator (if appointed), and the ADR Office. The motion shall detail the considerations that support the request, indicate whether the other parties concur in or object to the request, and propose a new deadline by which the ENE session shall be held.
(Rule 12.43 newly added 7/1/06.)
12.44 PROHIBITION AGAINST EX PARTE COMMUNICATION
Unless otherwise agreed to by the parties, counsel, and evaluator, and except with respect to scheduling matters, there should be no ex parte communication between parties or counsel and the evaluator until after the evaluator has committed his or her evaluation to a writing or all the parties have agreed that ex parte communications with the evaluator may occur.
(Rule 12.44 newly added 7/1/06.)
12.45 WRITTEN ENE STATEMENTS
(a) Time for Submission. No later than 7 days before the ENE session, each party shall submit directly to the evaluator, and shall serve on all other parties, a written ENE Statement.
(b) Prohibition Against Filing. The statements shall not be filed and the Court shall not have access to them.
(c) Content of Statement. The statements may be in any format (pleading, letter, outline) as long as they are clear and concise. The statements should include, but are not limited to, the following:
(1) Identification of participants, by name and title or status:
a) Person(s) with decision-making authority who, in addition to counsel, will attend the ENE session as representative(s) of the party; and
b) Person(s) connected with a party opponent (including an insurer representative) whose presence might substantially improve the utility of the ENE session or the prospects for settlement.
(2) Required information:
· A brief statement of the facts of the case.
· Description of what plaintiff must prove in order to prevail and how plaintiff intends to make such proof.
· Description of what defendant must prove and how defendant intends to make such proof.
· Statement of the types and amounts of damages claimed.
· Description of any discovery or evidentiary problems or related claims that may have an effect on the case.
(3) The parties should address whether there are legal or factual issues whose early resolution would reduce significantly the scope of the dispute.
(4) The parties should attach highlighted copies of relevant documents the availability of which would materially advance the purposes of the evaluation session (e.g., accident reports, medical reports, invoices evidencing special damages, dispositive motions and rulings, if any, etc.).
(Rule 12.45 newly added 7/1/06.)
12.46 THE PROCESS
The evaluator, an experienced attorney with expertise in the subject matter of the case, will convene an informal meeting of clients and counsel. At the informal meeting, the following occurs:
(a) Each side - through counsel, clients or witnesses - will present evidence and argument supporting its case (without regard to rules of evidence and without direct or cross-examination of witnesses).
(b) After the initial presentations, the evaluator may ask questions and raise issues. Thereafter, each side may present a responsive presentation. This process does not preclude an evaluator from asking questions during a party's presentation in the interests of clarity and efficiency.
(c) Following the presentations and questioning by the evaluator, the evaluator will identify areas of agreement and disagreement, clarify and focus the issues, and encourage the parties to enter procedural and substantive stipulations.
(d) The evaluator is required to prepare an evaluation, outside the presence of the parties, which may include:
1) an estimate, where feasible, of the likelihood of liability and the dollar range of damages, if any;
2) an assessment of the relative strengths and weaknesses of each party's case; and
3) the reasoning that supports these assessments.
(e) The evaluator should offer to present the evaluation to the parties, who may then ask either to:
1) hear the evaluation (which must be presented if any party so requests), or
2) conduct focused discovery or make additional disclosures, or
3) postpone hearing the evaluation in order to engage in settlement discussions facilitated by the evaluator, which may be conducted in separate meetings with each side.
Note: Such settlement discussions do not constitute mediation under the Court ADR Program.
(f) If settlement discussions do not occur or do not resolve the case, the evaluator may:
1) help the parties devise a plan for sharing additional information and/or conducting the key discovery that will expeditiously equip the parties to enter meaningful settlement discussions or position the case for disposition by motion or trial;
2) help the parties to realistically assess litigation costs; and/or
3) determine whether some form of follow-up to the ENE would contribute to case development or settlement.
(Rule 12.46 newly added 7/1/06.)
12.47 CONFIDENTIALITY
Except as provided below, court-sponsored ENE shall be confidential and subject to the mediation privilege set forth in Evidence Code sections 703.5 and 1115-1128. Except as provided below, no communications made in connection with ENE, including the evaluation, may be disclosed to the assigned judge or to anyone else not involved in the ENE, unless otherwise agreed to by all parties.
This rule does not prohibit:
(1) disclosures as may be stipulated by all parties and the evaluator;
(2) a report to or inquiry by the ADR Administrator concerning a complaint against an evaluator;
(3) the evaluator from discussing the ENE session with the court's ADR staff, who shall maintain the confidentiality of the ENE session;
(4) any participant or the evaluator from responding to an appropriate request for information made by persons authorized by the ADR Department to monitor or evaluate the court's ADR program;
(5) disclosures as are otherwise required by law.
The evaluator shall require the parties and all persons attending the ENE session to sign a confidentiality agreement on a form provided by the Court.
(Rule 12.47 newly added 7/1/06.)
12.48 NOTICE OF SETTLEMENT
If a case is settled, plaintiff's counsel or plaintiff if self-represented must immediately serve a copy of written notice of the settlement on the evaluator involved in the case and the referring court department and the ADR clerk. If the plaintiff or other party seeking affirmative relief does not notify the evaluator of a settlement at least 2 days before a scheduled ENE session, the court may order the party to compensate the evaluator. The amount of compensation may not be less that $150 and may not exceed $450.
(Rule 12.48 newly added 7/1/06.)
12.49 REPORTS
Within ten (10) days after the ENE session, the evaluator shall return to the ADR Office the following:
(1) ADR Session Attendance Form;
(2) Questionnaire for ENE Evaluators; and
(3) ADR Outcome Form, indicating the date of the session, whether any follow up is scheduled, whether the case settled, partially settled or did not settle.
(Rule 12.49 newly added 7/1/06.)
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