Frequently Asked Questions About Mediation

       
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  1. What is mediation?
  2. Can I use mediation?
  3. The judge referred my case to mediation – now what do I do?
  4. Do we have to go to mediation?
  5. How much is mediation going to cost me?
  6. Can a panel member charge a deposit for mediation?
  7. How can I save time and money?
  8. What are the mediator’s qualifications?
  9. How do I go about choosing a mediator?
  10. Can I get a list of mediators experienced with the type of case I have?
  11. Are there differences in mediator style or how mediations are conducted?
  12. What if we cannot agree on a mediator?
  13. What if we are unable to select a mediator on time?
  14. Can I talk with the mediator before the mediation?
  15. How will the mediator know my side of the story?
  16. Do I need a lawyer at my mediation?
  17. Who has to be at my mediation session?
  18. Does the insurance claims representative have to attend my mediation session?
  19. What is the meaning of confidentiality in mediation?
  20. What if we need more time to finish mediation?
  21. What if we reach agreement before mediation?
  22. When we resolve our dispute, how do we create an agreement?
  23. What if we can’t settle the case in mediation?
  24. What if I have a complaint about the mediation?

 

1.  What is mediation?

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Mediation is a process in which you and the other party are helped by a neutral person (mediator) to communicate so you can reach an agreement acceptable to everyone involved.

2.  Can I use mediation? I have filed a suit (or been served in a suit) but I have not attended the first case management conference. 

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If you agree with the other party to go to mediation or another ADR process, you can file a “Stipulation to Attend ADR and Delay First Case Management Conference 90 Days.”  This stipulation must be filed with the court at least 15 days before the date of your first court appearance. The Stipulation form and instructions are in the papers you were given when you filed the case or when the plaintiff served (gave) you the first packet of court forms. (If you need another copy of the Stipulation form, the ADR Program can fax you a copy). You can ask the judge at any point in the court process to refer your case to mediation. If you submit your stipulation on time, you can save a trip to court.

3.  The judge referred my case to mediation – now what do I do?

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Once a judge has referred your case to mediation it is important to contact the ADR Program at the Superior Court in Martinez as soon as possible. The ADR Program will provide you information, a panel member list, and forms so that you can get started selecting a mediator. The ADR Program will also register and monitor your case. You will want to start this process early because agreeing on a mediator and scheduling a session can take time.

Call 925-957-5787 or go to the Mediation Window at 751 Pine Street, Martinez CA.

4.  Do we have to go to mediation?

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Mediation is a voluntary process.  However at times a judge may determine that it is in the best interest of the parties to try mediation. If a judge orders you to try mediation, you must do what the judge orders. You can also try to negotiate an agreement before your mediation. This is fine, the judge sent you to mediation to provide you with assistance in negotiating an agreement. If an agreement has been reached, you must inform the court. You must also contact the ADR Program and the mediator as soon as possible.

5.  How much is mediation going to cost me?

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If the judge refers your case to mediation or you choose to use mediation and you select a mediator from the ADR Program Panel list then, the first two hours of mediation and 30 minutes of scheduling and preparation time are free. If you choose to continue beyond the two hours you must pay the rate indicated by the mediator. The parties routinely share the fee. All fees are paid directly to the mediator.

You may choose someone who is not on the ADR Panel list. This is considered private mediation (not court mediation) and you will need to pay the rate specified by the mediator. You must also inform the Court and the ADR Program of your decision to use a private mediator.

6.  Can a panel member charge a deposit for mediation?

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Local Court Rules allow mediators to require the parties to pay a deposit against anticipated mediation fees beyond the two mediation hours and 30-minute free time. However the mediator may only charge the parties for the actual time spent or services provided beyond the two and a half hours of free time, and must refund for any time remaining. [App. C, Local Rule 710]

7.  How can I save time and money?

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  1. Agree to mediation at or before your first court appearance. It may be easier to settle a dispute before the lawsuit gets underway and before substantial legal fees have been spent.
  2. Consider carefully which evidence you need in order to go to an early mediation session. Limiting discovery (collection of evidence) to only those elements needed in mediation may help avoid additional costs.
  3. Prepare for your mediation session. Preparation will help you to make your viewpoints known more effectively and in less time. You may use this worksheet to prepare for mediation.

8.  What are the mediator’s qualifications?

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Court panel mediators meet the training, education, experience, and ethical requirements provided by state law and local rules. Panel mediators also agree to follow the court’s fee policies regarding ADR services. For additional information see section 7, “Ethical and Practice Standards for ADR Panel Members” App. C, Local Court Rules 

9.  How do I go about choosing a mediator?

Mediators have a variety of professional backgrounds and differing styles. In the next question we describe different styles and approaches. Familiarize yourself with this information and decide which approach is best suited for you. Experience and training are also factors you might consider in your selection. You can find out more about a particular mediator here, by visiting the ADR Program in Martinez, or contact the panel member and ask about their background, training, style, and experience. Many of the mediators also have their own websites listed in the online database.

10.  Can I get a list of mediators experienced with the type of case I have?

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The ADR Program will provide you with a list of mediators who say they have expertise in the specific area of your dispute. If you have questions concerning your mediator list, contact the ADR Program. The ADR Program can provide a cross referenced list of various case type expertise in the area of your dispute.

11.  Are there differences in mediator style or how mediations are conducted?

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While mediators have different approaches, there are some common elements to all mediations. Mediation is a voluntary process, and agreements can only be reached if all parties agree. The mediator will not force an agreement and will not make a decision about how the case will be settled. Mediation is a negotiation, be prepared to negotiate. Mediators help parties to communicate with each other and focus on the most important issues in a case. Despite these similarities, there are important differences in how mediators work. 

Some mediator's will change their style depending on the type of conflict and what approach the parties prefer.  Understanding that mediation styles vary from mediator to mediator and from case to case will help you to know what qualities to look for when choosing a mediator. Talk to the mediators about their style.

      Here are some differences:

  • “What’s it worth?” or “Let’s talk!”
    In some cases mediators will tell parties what they think a case is "worth" or make suggestions regarding what a fair outcome in the case might be. This style of mediation is often called 'evaluative' and it will provide people with feedback on their case and offer suggestions for resolving the conflict. In other instances, the mediator will focus on helping the parties find their own ways to resolve the case. This style of mediation is called 'facilitative' because the mediator facilitates negotiation and assists people to find their own workable solutions.
  • Meeting Together or Meeting Separately
    Some mediators meet with all parties in one room (joint session); others separate the parties into different rooms (caucus session). Many mediators will use a mixture of approaches, perhaps beginning in joint session and then going to caucus for all or portions of the mediation.
    In joint session, the mediator may facilitate effective communication and problem solving. Caucus sessions can allow parties to vent intense built-up emotions without aggravating the other party, explore important negotiation approaches, redefine interests, clarify positions, create new offers, or weigh the other party's proposals in private.
  • Lawyers or Not
    Some mediators talk mainly with the lawyers who represent parties, and will not work with parties who are not represented by lawyers. Other mediators prefer to speak directly with the parties and lawyers are present to provide support and legal advice to their clients.

12.  What if we cannot agree on a mediator?

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If you are not able to agree on a mediator, try approaching the selection process another way. Rather than picking one name, reduce the list by indicating mediators you will not choose. Then share that list with the other party and allow them to select from the remaining names. You may not be able to get your first choice and will have to compromise. If you are still having problems contact the ADR Program.

13.  What if we are unable to select a mediator on time?

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In most cases, you are asked to select a mediator within 14 days of the referral to mediation. If a selection has not been made by that time, we must inform the judge. The judge may issue an Order to Show Cause (OSC). This means the parties will have to go back to court and explain why they haven't selected a mediator. You may call the ADR Program for information about an extension. Depending on the judge for your case, we may be able to give you additional time to select a mediator.

14.  Can I talk with the mediator before the mediation?

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You may speak to your mediator before the mediation to get information that will help you to make your selection, to confirm that the mediator is willing to take the case, and for scheduling. Once you have scheduled your mediation, the mediator may limit communication. It is important to all mediators that they maintain their neutrality and there may be times when mediators will not be willing to discuss certain aspects of your case. 

15.  How will the mediator know my side of the story?

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Local Court Rules, App. C, Rule 207 states that mediation participants must each prepare a written statement summarizing their case. Mediation statements should be less than five pages. Each party must send their mediation statement to the other parties and to the mediator at least five working days before the first conference. Mediation statements must contain the following information:

    1. The name and title (or relationship to the case) of all people who will attend mediation;
    2. A list of people connected with other parties who, if present at mediation, might improve the chances of settlement;
    3. A brief statement of the important issues, and the party's views on liability and damages;
    4. A list of issues that, if narrowed or resolved early, would promote settlement;
    5. A brief description of the history and status of any settlement negotiations; and,
    6. Copies of any court or other documents that will help the mediator understand the issues in dispute.

16.  Do I need a lawyer at my mediation?

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A lawyer is not required. A lawyer can help deal with legal issues and provide you with advice.

Consider:

    •  The complexity of issues and amount of money involved in your case
    •  Your understanding of the mediation process and legal issues
    •  Whether an attorney represents the other party

It may help to have someone with you at mediation. You may choose to have a friend or family member with you.

Lawyer Referral Service (www.cccba.org/lawserv.htm or (925) 825-5700) can refer lawyers who are willing to help with all or part of your case. For example, a lawyer may be willing to limit assistance to helping you at your mediation session. This type of limited assistance is sometimes referred to as “unbundled” legal services and may make legal assistance more affordable.

17.  Who has to be at my mediation session?

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Make sure that everyone who is important to your case will be at the session. Local Court Rules, Appendix C requires all decision makers to be present. If someone cannot attend the mediation, the judge before the start of the session must excuse him or her. This includes lawyers, insurance representatives and any other decision makers.

18.  Does the insurance claims representative have to attend my mediation session?

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If the matter involves insurance and a claims representative is needed to resolve the matter, the representative must be present unless excused by the judge before the mediation. The judge may allow the representative to be on telephone standby. It is important that the other parties and the mediator in the case also be informed of the representative’s non-attendance.

19.  What is the meaning of confidentiality in mediation?

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Mediation gives you an opportunity to talk openly and explore a full range of ideas for resolving your conflict. To encourage this, the information prepared for the mediation and discussed in the session cannot be used as evidence in court, and the mediator cannot be forced to testify about what happened or was said in the mediation. The mediator will only report to the court whether or not an agreement was reached.

20.  What if we need more time to finish mediation?

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The judge sets the mediation completion date. It is important that you do everything you can to compete mediation on time. If you are unable to finish by the completion date contact the ADR Program to find out how to ask for an extension from the judge.

21.  What if we reach agreement before mediation?

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You must inform the court that you have reached agreement and cancel your next court date. You must also contact the ADR Program and the mediator as soon as possible.

22.  When we resolve our dispute, how do we create an agreement?

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Usually the parties write the agreement with the understanding that it will be an enforceable contract. Settlements reached through mediation are enforceable in the same manner as are other contracts. They can be enforced as written or oral contracts. The parties may choose to make their agreement a court order and may also choose to have the agreement read into the court record pursuant to Code of Civil Procedures section 664.6

23.  What if we can’t settle the case in mediation?

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You must attend your next scheduled court date. Your mediator will notify the court and the ADR Program that the matter has not settled.  You should complete and return the “Meditation Survey” which you will receive upon receipt of the mediator’s indication of completion. You and the other party may also feel that an additional mediation, a different mediator, or a different ADR process would be helpful in settling your case. You are not restricted to using only one ADR process. If you have any questions please contact the ADR Program.

24.  What if I have a complaint about the mediation?

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If you have concerns about the mediator or the mediation, you are encouraged to discuss your concerns with the mediator. You can select another mediator and begin mediation again, but will need to inform the court and the ADR Program. If your concerns are not resolved, contact the ADR Program Director. For details on the complaint process see Local Rules App. C Rule 109.

 


 

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