THE MEDIATION PROJECT'S
EARLY MEDIATION INITIATIVE
© 2007 Steven Kesten
a. The purpose of this
legislation is to provide litigants in the Superior Court of the State
of California with a mechanism for engaging in voluntary non-binding
early mediation as a first step in the litigation process without
abrogating the fundamental rights of any party. The intent of the
initiative is accomplished by strongly encouraging parties to
litigation mediate their claims after filing a court action and service
on Defendants is complete but before Defendants or Cross Defendants
file an answer, general denial or any other form of responsive pleading
to the complaint or cross-complaint and prior to the commencement of
statutory discovery. The mechanism for engaging in early mediation
shall be as follows:
b. After the commencement
of a legal action in the Superior Court of the State of California,
Plaintiff(s) or Cross-Complainant(s) must serve defendants or cross
defendants, together with the summons and complaint, an offer to engage
in mediation with any and all Defendants and Cross Defendants. The
offer to mediate shall toll all applicable time limits for all
Defendants and Cross Defendants to file an answer, general denial or
responsive pleading to the complaint or cross-complaint or otherwise
attempt to defeat the action for one hundred and twenty (120) days
after service of the notice to mediate on at least one other party. A
party’s right to seek a TRO, injunction or other form of immediate
relief or court intervention remains unaffected by the language of this
statute. The statute is not applicable to unlawful detainer actions.
c. The party receiving a
communication from Plaintiff or Cross-Complainant proposing mediation
must respond, by verifiable means, to the offer within thirty (30) days
after receipt expressly stating a willingness to participate in the
proposed mediation or refusal to participate. For good cause shown, the
time within which a party is required to respond to an offer to mediate
may be extended by any court having jurisdiction over the dispute or
the parties can, by mutual written agreement, extend the time to
respond to an offer to mediate for up to an additional sixty (60) days.
d. If Plaintiff’s or
Cross-Complainant’s offer to mediate is accepted, the mediation
involving Plaintiff(s), Cross-Complainant(s) and all named Defendants
and Cross Defendants shall take place as early as practical within the
one hundred and twenty (120) day tolling period. The one hundred and
twenty (120) day tolling period and the time by which Defendant(s) and
Cross Defendant(s) must file an answer, general denial or attack on the
pleadings may be extended by the court in which the action is filed. If
the defendant and/or cross defendant refuses to participate in
mediation, the defendant or cross defendant must file an answer,
general denial or responsive pleading to the complaint or cross
complaint within thirty (30) days after giving notification of their
refusal to engage in mediation or sixty (60) days after service of the
summons, complaint and offer to mediate, whichever is earlier.
e. Fifteen days prior to
the scheduled mediation, each of the parties are to produce to all
other parties documents and things relevant to the dispute that are in
their possession, custody or control except those items that are
subject to a claim of privilege pursuant to California Evidence Code §
1119 et seq. Documents prepared for and in the course of the mediation
will be protected under the provisions of Evidence Code §1119 et seq.
f. The mediator shall be
selected by mutual agreement of the parties and to the extent feasible
the selection shall not impose a monetary burden on any party agreeing
to engage in mediation disproportionate to the amount in controversy or
a party’s ability to pay the costs of mediation. If a mutually
agreeable mediator cannot be selected and retained by the parties to
the mediation within sixty (60) days after all parties have responded
to an offer to mediate, any party may petition the court by means of an
ex parte appearance and shall give notice to all affected parties of
that party’s intent to appear in court and seek judicial assistance in
a manner consistent with Local Rules of Court, the California Rules of
Court and the Code of Civil Procedure. The petitioning party shall
submit a written application to the court.
1. Each party shall submit
the names of three mediators and shall have the right to strike the
name of one mediator proposed by each of the other parties. The
presiding judge of the court having jurisdiction over the matter, or
any court personnel as may be appointed by the presiding judge, shall
select and appoint a mediator from the names of proposed mediators
submitted by the parties and designate a location for the mediation and
date by which the mediation is to take place. The selection of the
mediator shall be by a blind draw.
2. The applicable statutes
controlling the time for a Defendant or Cross Defendant to enter an
answer, general denial or responsive pleadings shall be tolled until
the conclusion of the mediation provided it occurs on or before the
date set by the court. Defendants and Cross Defendants shall have ten
(10) days after the conclusion of meditation or ten (10) days after the
last date to mediate set by the court, whichever is earlier, to file an
answer, general denial or responsive pleadings.
g. If a Plaintiff or
Cross-Complainant fails to initiate or participate in mediation, or if
a Defendant(s) or Cross Defendant(s) refuses to participate in the
mediation process that party shall be required to pay the attorney fees
and costs of the opposing party(s) in the event a civil action is
litigated to judgment and provided the party not participating in or
refusing to initiate or engage in mediation fails to prevail in the
litigation. If the prevailing party in the court action fails to offer
other parties the opportunity to mediate or refuses to mediate when
such an offer is made, that party shall not be entitled to recover
costs of suit or attorney fees from opposing parties whether or not
that party would otherwise be entitled to such recovery by contract or
statute.
h. By written signed
stipulation between Plaintiff and at least one other opposing party,
the litigants can agree that mediation is an inappropriate mechanism
for resolving the dispute at the commencement of the action. A
stipulation waiving early mediation signed by Plaintiff and at least
one other opposing party shall be filed with the court and the time
within which a party has to file an answer, general denial or other
responsive pleading shall not be thirty days after service of the
summons and complaint or cross complaint or ten days after the filing
of the stipulation not to engage in mediation, whichever is earlier.
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