Who Must Attend The Mediation?
Local Rules require that all parties and decision makers must be present (LASC
Local Rule 12.15, CRC 1634).
The parties and decision makers must be prepared to remain present to
participate in the mediation until agreement is reached, or the mediation is
terminated.
If an insurance carrier is involved, a claims representative should be present
with appropriate authority and with telephonic access to any other decision
maker who can grant additional authority.
What Is The Role Of The Mediator?
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 or
Non-Agreement or seek sanctions for failure to comply pursuant to Local Rules
12.5, 12.10 & 12.15.
How To Prepare For The Mediation
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 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 entrenched and
thus discourage progress.
Submission Of Briefs
Some mediators may require a brief. Usually the brief will include a concise
description of the facts, the parties and their representatives, and any
unusual rules of law. The brief may or many not be exchanged with the other
side. Exchange of briefs is helpful where the goal is to present a persuasive
case to the other side. No exchange may be preferred where the parties wish to
disclose information to the mediator only, such as the range of settlement that
is desired. In either event, parties should be prepared to discuss frankly all
aspects of the case during private discussions with the mediator.
What To Expect At The Mediation Conference
The mediator's opening statement will usually discuss the mediation process and
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 as to 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 to
writing which will be an enforceable contract if the parties so agree (Evidence
Code 1123).
Discovery During Mediation
Although the parties are urged to exercise restraint with respect to conducting
discovery while mediation is pending (LASC Local Rule 12.17, CCP 1775.11), any
party who participates in mediation retains the right to obtain discovery.
|
