Posts Tagged ‘court-ordered mediations’

Mediation Message No. 76



Ninth Circuit Chief Judge Alex Kozinski once again has established his credentials as a legal iconoclast. In Nordyke v. King (9th Cir. 2012) 676 F.3d 828 (Nordyke II), he issued a short but sharp rebuke of the en banc panel’s order that the parties mediate a long-running dispute concerning the right to bear arms.

Nordyke I involved an Alameda County ordinance prohibiting firearm’s sellers from possessing firearms on County property and at County fairgrounds. The Ninth Circuit affirmed the trial court’s dismissal of the gun sellers’ action challenging the ordinance as a violation of the Second Amendment because an ordinance exception allowed gun sales as long as the firearms were secured to prevent unauthorized use when not in the actual possession of the authorized participant. Thus, the Court reasoned, the ordinance did not violate the Second Amendment since it only minimally regulated the sale of firearms at gun shows.

On en banc review of Nordyke I, the majority in Nordyke II held that “the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation. The case is referred to the Circuit Mediation Office for mediation, and its submission is deferred for 45 days or pending further order of the court.”
Kozinski dissenting, with Judge Gould concurring, stated “The parties have not asked for mediation; they have said nothing that suggests mediation would be fruitful; when asked about it in court, they displayed obvious distaste for the idea. We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly. This delay serves no useful purpose; it only makes us look foolish. I want no part of it.”

The majority’s order is an appropriate recognition of mediation’s value and, perhaps, as well, a subtle effort to sidestep a possible appeal of the Second Amendment issue to the U.S. Supreme Court, where its affirmation might be reversed. Kozinski’s dissent is notable because it reflects the distaste of a well known jurist for imposing mediation on unwilling parties.

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, June 2012

Please visit my website at for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.

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

Mediation Message No. 44


The Judicial Council, which has already established ethical rules for the conduct of court-connected mediations (see Rule of Court 3.850 et seq.; court-connected mediations, as contrasted with private mediations, are supervised by persons selected from a superior court’s list or panel for the mediation of general civil cases), has issued a preliminary draft of model qualification standards for panelists in court-connected mediations. If this draft becomes a formal rule proposal, it will be circulated for public comment. (Note that while the Judicial Council has not yet established ethical standards for private mediations, Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536, 543 encourages “judicial officers and judges acting as mediators … to observe … rules [3.850 et seq.] when mediating.”)

The preliminary draft, which is for informal discussion purposes only, includes the following proposals:

• Any list of neutrals made available to litigants by the courts must contain, at a minimum, the types of ADR services offered by the neutral; the neutral’s résumé, including ADR training and experience, and the fees charged by the neutral;

• To be eligible for the superior court’s list or panel, the neutral must agree to comply with all applicable ethics requirements and Rules of Court and agree to serve on a pro bono or “modest-means basis” (this probably is the equivalent of the Los Angeles Superior Court’s $150 per hour party-pay program) in at least one case per year;

• The mediator must have either a bachelor’s degree from an accredited college or university or a high-school diploma or GED credential and at least six years of subsequent work or volunteer experience relevant to the types of disputes that may be mediated;

• The mediator must have completed either 40 hours of specified mediation training within the past two years or completed 40 hours of such training at any time and completed 7 hours of continuing or advanced mediation training within the past two years. At least 35 of the latter 40 hours must have been in a single, comprehensive, mediation training program that included conflict, communication and mediation theory; stages of the mediation process; mediation and communication skills and techniques; mediation ethics; the law governing mediation, including mediation confidentiality and, finally, demonstrations of mediation and role-playing. The 40-hour program must also include training on the Rules of Court governing court-connected mediation programs, cultural and gender issues in mediation and the preparation of mediated agreements;

• The mediator must have completed an orientation sponsored by the local court concerning its mediation program;

• The mediator must have mediated or co-mediated at least three or observed at least six complete mediations of at least two hours in length within the past year and mediated at least two complex mediations of at least two hours in length that were observed and evaluated by an approved mentor mediator;

• The mediator must submit references or evaluation forms from at least three individuals who participated in mediations conducted or co-mediated by the applicant;

• An applicant who does not meet all of the above requirements may still qualify as a mediator if he or she provides the local ADR administrator “with other satisfactory evidence of sufficient education, training, skills, and experience”;

• To continue to be included on a court’s list of mediators, mediators shall, every two years, complete at least 7 hours of continuing mediation education or training on topics covered in the fourth bulleted paragraph, above. And, at least 1 of those 7 hours must address mediation ethics.

Any person who wants to comment on this preliminary draft may contact Heather Anderson, Office of the General Counsel, 415-865-7691,; Alan Wiener, Office of the General Counsel, 818-558-3051, or appear on Monday, June 2 from 5:00 to 7:00 p.m. at a public forum on the matter at the Administrative Office of the Courts, Southern Regional Office, 2255 North Ontario Street, Suite 200 in Burbank or on Wednesday, June 4, from 5:00 to 7:00 p.m. at Thomas Jefferson School of Law, 2121 San Diego Avenue in San Diego.

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, May 2008

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