PRE-MEDIATION COMMUNICATIONS
Either a party’s attorney or the mediator should consider contacting one another prior to the mediation date whenever either believes there is an issue that might impact the mediation process which needs to be discussed beforehand. Such communications are confidential. (See Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 holding that mediation confidentiality applies to any writing or statement that would not have existed but for an impending mediation. A full discussion of Wimsatt can be found in Mediation Message no. 39.)
Attorneys may wish to call the mediator, for example, if they feel there is a need to clarify or explain a complicated factual or legal issue that cannot be adequately discussed in a brief; to advise that they have a sensitive or emotional client who does not want to see an opposing party; when there is good cause to request that a client or person with settlement authority can not be present or when they need to ask about the availability of special equipment to show a video or other type of demonstrative evidence. (Note that both Rule of Court 3.874, subdivisions (a)(1) and (2), and Los Angeles Superior Court Rule 12.15 require the attendance of the parties, their counsel and insurance representatives at all court-connected mediation sessions unless excused.)
Mediators may call participating attorneys to talk about whether or not a joint caucus should or should not be held or to ask for clarification of facts or law that have not been fully developed in the briefs.
Pre-mediation communications are another example that mediation is a dynamic process with few limitations or restrictions other than that it must be confidential and conducted in good faith.
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, January 2009