Civil ยท ADR

Preparing For The Mediation Process

Who Must Attend The Mediation?
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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?
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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
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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
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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
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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
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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.