MEDIATION OR NOT? PART I

ONE AUTHOR’S VIEW OF THE INSTITUTION OF MEDIATION

In this day and age of maximal angst in Society and the continued onslaught of litigation there has been a huge push by the Court systems in general to seriously encourage all participants in the Court system to partake in what is styled ADR (Alternative Dispute Resolution) with Mediation being one possible alternative within the ADR system. This focus is even more heightened in this current time of budget cuts from the Govenor’s offices in the State of California as pertains to the California Court system and no doubt has been felt in the Federal Court system throughout the United States given the recent financially difficult times and given the painfully slow financial recovery that is progressing as of the date of the within article.

In support of this anecdotal input, the author of this article was in recent attendance at a San Diego Superior Court update sponsored by the San Diego County Bar Association; and, Judge Meyer , who was one of the panelists, and a very active member of the Independent Calendaring Departments of the downtown San Diego Branch of the Superior Court, advised that with all of the budget cuts currently in place the number of pending cases in front of any given independent calendaring judge had doubled in volume up from 500 cases per judge to 1100 cases per judge. The upshot of all of this is that the use of ADR (alternative dispute resolution) whether through the San Diego Superior Court , or other outside Mediation services, is going to be strongly encouraged by the Courts, both State and Federal, and is something that all civil litigants will seriously have to consider if the parties want to have a timely resolve of their pending issues.

This author’s view is that Mediation is an approach which depending upon multiple circumstances, can be very beneficial and a really viable alternative to the extraordinary expense of litigation through Trial whether in Courts of general jurisdiction (California Superior Courts) , Courts of limited jurisdiction e.g. U.S.District Courts (Federal Courts) or even Arbitration through many different mediums .

PART I- THE SAN DIEGO SUPERIOR COURT CIVIL MEDIATION PROGRAM

The San Diego Superior Court has a pretty good description of what a Mediation is:

‘Mediation is a confidential, non-binding process in which a trained mediator facilitates communication between disputants and assists parties in reaching a mutually acceptable resolution of all or part of their dispute. The mediator is not the decision –maker and does not resolve the dispute—the parties do. However a mediator is often able to more fully explore the parties’ underlying interests, needs and priorities. Mediation is a more flexible process , which is less formal and may reduce the time and costs that are often associated with a trial.

The definition provided by the Court is a pretty fair statement of what mediation generally is and what, with a little luck it might help to do

The author herein has reviewed a good deal of the data and dogma that one can find through various channels of information regarding Mediation in addition to having been involved in hundreds if not thousands of Mediations throughout his legal career of approximately forty years.

Part I of this series of articles and presentations will give a very brief, snapshot if you will, of the San Diego Superior Court Mediation system.

The Court’s Mediation system is part of the Court’s overall ADR (Alternative Dispute Resolution) program which is comprised in it’s component parts of : mediation; settlement conferences; neutral evaluation, and arbitration. It is not the intent of the within article to explore all four of the parts of the court’s ADR system, but only to discuss mediation.

Cases for which Mediation might fit:

It is often thought that mediation is useful when the parties have relationships that they want to preserve long-term.

So, by way of example , when business partners, family members, or neighbors have disputes’ mediation is an approach that usually will help resolve the dispute as well as maintain the relationship.

Often times mediation is also thought to be of good over all effect where the parties positions are highly emotionally charged.

A good mediator can facilitate a vetting / or venting by both parties , while also pointing out the strengths and weakness of each sides position to the respective parties with hopeful resolution that most likely neither party will be ‘happy’ with , but both parties can ‘live with’. Many commentators feel that such an ultimate arrangement is the definition of ‘compromise’, which is certainly the hallmark of mediation as well as all other forms of volitional settlement.

Use of the settlement conference approach, usually later in the litigation process and or neutral evaluation, which is usually earlier in the litigation process, are other volitional settlement procedures where no one group is ‘compelled’ to accept a particular ruling as by their nature there is no ‘ruling’ but rather a ‘settlement agreement’, a mediator’s agreement, or other similarly named volitional entering of a resolution agreement by both parties and their attorneys.

Also, a part of the alternative dispute resolution processes available at the Courts is arbitration, binding or non binding.

In both of these arenas there is actually an evidentiary hearing wherein possibly the formal rules of evidence are altered somewhat, but none the less , there is a ruling at the conclusion of the evidence generally in favor of one party over the other.

Assuming the arbitration is binding then the parties are bound by the decision on the evidence, of the arbitrator / or arbitrators. In most instances the decisions are non appealable. Arbitration (although in some circles this would be heavily debated) is generally not less expensive and sometimes can be as expensive or more so than an actual CourtTrial whether by Court or by Jury.

But, back to to the Superior Court Mediation program;

Of course, generally speaking the parties need to have already filed a lawsuit in the Superior Court (or be in the process of filing a Petition in the Court) in order to partake in the Court Mediation program.

Parties may stipulate to use of the Court’s Mediation program before or at the Case Management Conference , held approximately 150 days after filing of the complaint. The Court maintains a panel of approved Mediators who have met certain minimum qualifications and are required to adhere to certain ethical standards.

Mediators on the Court’s panel have agreed to charge $150 per hour for each of the first two hours in a limited civil action (claim under certain jurisdictional amount) and $250 per hour for each of the first two hours in an unlimited civil action , and their regular hourly rate thereafter for court referred mediations. In using this program the parties compensate the mediators directly and the mediations are conducted at the mediator’s offices unless other arrangements are made with the agreement of all of the parties.

Most civil cases are elgible for the program. Certain cases are not elgible and are as follows: probate, guardianship, conservatorship, family, juvenile, small claims, small claims appeals ,unlawful detainers, class actions and certain type of civil petitions.

For more information about the San Diego Court Mediation program you can contact the Mediation Program offices at 619-450-7478.

Part II of this presentation and or article will be a follow up to this article and will discuss further types of Mediation programs available to disputing parties.

Respectfully submitted,
Steven H Wilhelm

By | 2017-08-07T15:54:33+00:00 May 28th, 2014|