Posts Tagged ‘court-ordered mediations’

TRIAL COURTS HAVE LIMITED POWER TO ORDER MEDIATIONS

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

JUDICIAL COUNCIL PRELIMINARY DRAFT STANDARDS FOR COURT-CONNECTED MEDIATORS

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.”)
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LIMITATIONS ON TRIAL COURTS IN ORDERING MEDIATIONS

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.
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