MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 76 JUDGE KOZINSKI IS NOT A FAN OF MEDIATION 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…
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…
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…
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…