APPEARANCE AT MEDIATION OF PERSONS WITH AUTHORITY TO SETTLE
If a civil case has been ordered to mediation, in which the amount in controversy is under $50,000 (Code Civ. Proc. Sec. 1775.5), all parties, including insurance representatives with authority to settle or recommend settlement and attorneys of record, must attend all mediation sessions in person unless excused by the mediator or permitted by the mediator to attend by telephone. (California Rule of Court 3.894; L.A. Superior Court Rule 12.15.) Although this rule does not apply to cases which have not been ordered into mediation or where the matters have not yet been filed in Superior Court, the requirement that a person with authority to settle the dispute be personally present at mediation, unless previously excused by the mediator, should be the standard for all mediations.
Based on experience, the most important elements to a successful mediation, other than preparation (see Mediation Messages 8, 9, 15, 31, 42, 49, 58, 78 and 111), is that the parties attend mediations with a positive attitude and that persons with authority be physically present. Telephonic participation is often not satisfactory because the designated person may not be reachable and the mediator’s ability to talk directly to that person is minimized by the impersonal nature of the call. It is preferable, therefore, in all mediations which do not come within sec. 1775.5, that counsel advise the mediator beforehand about the possible nonappearance of a person with authority to settle, which notice allows the mediator the opportunity to attempt to persuade the attorney that that person should attend in person.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067