Mediation Message No. 41


Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536, which holds that a trial court can not order a party, over its objection, to participate in and pay for a mediation (id. at p. 541), provides a good opportunity to review the powers of and limitations on trial courts regarding mediations, both private and court-ordered.

In Jeld-Wen, a multi-party construction defect case, a trial judge proposed a case management order which deemed the matter to be complex and appointed, under Code of Civil Procedure section 187 (which provides for the means to effect jurisdiction), a mediator or MSC judge who was to be paid $500 an hour for a maximum of 500 hours of mediation. The order provided that, unless excused by the court or the mediator, the parties were to appear at the mediation with their insurance representatives or other individuals with settlement authority. Thereafter, after Jeld-Wen refused to attend a mediation, the trial court ordered it to attend the next mediation session and to pay $200 in sanctions for violating the previous order.

In setting aside the order compelling the above mediation attendance and sanctions, the appellate court “conclude(d) that a case management conference order requiring that parties in complex cases attend and pay for mediation is not authorized by (Code of Civil Procedure § 1775 et seq.) and is contrary to the voluntary nature of mediation. The essence of mediation is its voluntariness and we reject the suggestion that trial courts presiding over complex cases have the inherent authority to force a party to attend and pay for mediation over the party’s express objection because such an order conflicts with the statutory scheme pertaining to mediation.” (Id. at p. 543.)
Left untouched by Jeld-Wen, however, are the Rules of Court (see rules 3.850 et seq. and 3.870 et seq.) which apply to court-ordered or court-connected mediations. In other words, while a court can not order an unwilling party to pay for a mediation, it can still order it to be involved in a pro bono mediation where the demand does not exceed $50,000 (Rule 3.871), which includes the obligations to provide at least two days notice of the cancellation of a scheduled mediation (rule 3.1385, subdivisions (a)(1) and (2)); to serve a list of its mediation participants five days before the mediation (rule 3.874, subdivision (b)(1)); to submit, upon request by the mediator, a mediation statement (rule 3.874, subdivision (b)(2)) and, unless excused by the mediator, to attend the mediation along with its counsel and, where there is insurance coverage, an insurance representative with authority to settle or recommend settlement (rule 3.874, subdivisions (a)(1) and (2)). (Note that defendants need not appear where they are covered fully under an insurance policy that gives the insurer the right to settle without the insured’s consent. [Fiege v. Cooke, et al. (2005) 125 Cal.App.4th 1350.].)
In summary, a court can order parties in certain limited financial situations to mediate a matter, without cost. The Rules of Court apply to these mediations. On the other hand, a court can not order a party, over objection, to pay for a mediation. If there is no objection to such an order, the mediation is still court-connected and, thus, the Rules of Court still apply. The Rules of Court do not apply when the parties, on their own, have agreed to participate in a private mediation.

Copyright, Michael D. Marcus, November 2007

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