Mediation Message No. 61


This message is dedicated to those lawyers who believe that trial courts have unlimited authority to order mediation in all civil matters. In actuality, courts only have the power to order parties to mediation where the amount in controversy does not exceed $50,000 for each plaintiff. (Rule of Court 3.891, subdivision (a)(1).) Where the amount exceeds $50,000, the parties may stipulate to mediation no later than 90 days before trial, unless the court permits a shorter time. (Subdivision (a)(2).)

What some attorneys mistake for an order to mediate is instead judicial “encouragement” that they mediate the dispute. Nonetheless, whether a court is gentle prodding the parties to mediate or erroneously applying the law, the more important question is how to respond to such an “order” when the amount in controversy exceeds $50,000. Since you’re not going to win any points by reminding judges about rule 3.891, subdivision (b), attorneys in the impacted matter should agree to mediate the dispute, when it would be effective to do so, notwithstanding the inappropriateness of the order. (See Mediation Message no. 59 which discusses considerations in deciding when to mediate.) On the other hand, if you and opposing counsel agree that mediating at that time would be ineffective, your alternatives are either to remain silent and mediate or jointly advise the court (in very understated terms) that the order is in excess of its jurisdiction. In the latter circumstance, the judge will not be pleased with either one of you but his/her wrath should at least be evenly distributed.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, July 2010

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