Mediation Message No. 38

Attendance, Participation Lists and Mediation Statements

With little advance warning or fanfare, the Judicial Council reorganized, renumbered and, in some instances, amended the Rules of Court on January 1, 2007. The most dramatic changes in the standards applicable to court-ordered mediations (3.850 through 3.878) are in Rule of Court 3.874, which covers attendance at mediations, the serving of participation lists and the submission of mediation statements.

Attendance. Former Rule of Court 1634 was quite simple; it required essentially that “The parties shall personally appear at the first mediation session, and at any subsequent session unless excused by the mediator” and that “an insurance representative of a covered party also shall be present or available at such sessions, unless excused by the mediator.” Rule of Court 3.874, subdivisions (a)(1) and (2), continues to require the personal attendance of the parties, their counsels and insurance representatives at all mediation sessions, unless excused, but now the party, attorney or insurance representative whom the mediator has excused from attending the session or has been allowed to participate by telephone “must promptly send a letter or an electronic communication to the mediator and to all parties confirming the excuse or permission.” (Subdivision (a)(3).) Note that the notice obligation is on the person excused and not the attorney for the party. The change in rule 3.874 that the parties, counsels and insurance representatives “must (rather than shall) attend all mediation sessions in person, unless excused” is of no moment because Rule of Court 1.5, subdivision (b)(1), provides that “’must’ is mandatory.” Los Angeles Superior Court Rule 12.15, which tracks substantially the language in former rule 1634, still requires that insurance representatives “shall” be present or available, unless excused.

Participation lists. Under subdivision (b)(1), the parties are now required, at least five court days before the first mediation session, to serve a list of their mediation participants (which includes the parties, attorneys, representatives of parties that are not natural persons and insurance representatives) on the mediator and all other parties. Supplemental lists must be served promptly to reflect the presence of additional persons.

Mediation statements. Also new is that a mediator may request “that each party submit a short mediation statement providing information about the issues in dispute and possible resolutions of those issues and other information or documents that may appear helpful to resolve the dispute.” (Subdivision (b)(2).)

Copyright, Michael D. Marcus, April 2007

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