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Civil Court
ADR: Mediation & Evaluation
[Esta página está en español;
Trang này bằng tiếng Việt]
This section tells you about:
- Mediation, arbitration & neutral evaluation basics
- Getting ready for mediation
- What happens if you need more time to complete the mediation?
- What happens if the case settles?
- What happens if you can't reach an agreement in mediation?
- Evaluation forms - we want your feedback!
- List of court-approved mediators
- Mediation, arbitration & neutral evaluation basics
If I want mediation or neutral evaluation, how do I
start?
Contact the other party,
or their lawyer, and ask if they are willing to try ADR. If you and the
other parties agree on what kind of ADR
to use, start the ADR process by calling the ADR Administrator. Look for
the ADR
Administrator's number in the
Civil section of the court's phone list. For the hours the ADR
Administrator can be reached, see the business hours section of the
Downtown Superior Court web page.
When everyone agrees to use ADR, the plaintiff or the plaintiff’s lawyer
must file an ADR Stipulation
(ADR
Stipulation and Order form) with the Court. This form tells the Court
that the case is going to ADR, the kind of ADR you will use, and who the
neutral (the mediator
or evaluator) is. It also tells the Court the date of the ADR session.
If you do this before your first Court appearance (the Case Management
Conference), you may be able to skip your first court date. When you agree
to try ADR the court will give your extra time to try and settle, and will
give you a new court date on a later day.
If you and the other parties cannot agree on what kind of ADR to use, each party
can talk to the judge at your first Court appearance, and the judge will
decide what to do next.
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How do I find a mediator, arbitrator or neutral
evaluator?
The ADR Administrator has a list of mediators, neutral evaluators, and
private arbitrator who
can help you with your case.
You can download this list from the
ADR section of
the court's main website.
You can also find a mediator, arbitrator or neutral evaluator:
What do I look for in a mediator?
In mediation, experience with the mediation process can be much more
important than experience with the law that the case involves.
Look for a mediator with a lot of experience in mediations. Choose someone
with good people skills who you believe will help settle the case.
What do I look for in a neutral evaluator?
Choose someone with experience in the law of your case. The evaluator will
give you an opinion on the likely trial outcome of your case. The more
experience, the better. You also want someone with good people and
negotiating skills.
What do I look for in a private arbitrator?
Choose someone with experience in:
Choose someone you think will be fair to all parties, who can listen,
and who can sort out conflicting facts and legal questions.
How do we schedule our first ADR session?
You or your lawyers will call the mediator or evaluator to schedule your
first ADR session. The Court does not set up hearings for mediation,
arbitration,
special masters, or neutral evaluation. You or your lawyer must do
this.
Where are the ADR sessions held?
The ADR sessions are usually held at the mediator or evaluator’s office. Or, if
the mediator or evaluator doesn’t have an office available, they
are held at a place that all parties agree on.
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Do I have to file a form to start mediation or other type of ADR?
The plaintiff (or his/her attorney) has 20 days after the Stipulation
(agreement to use ADR) to file an
ADR Stipulation and Order Form
with the Court.
This form tells the Court who the mediator, arbitrator or evaluator will
be, and when the first session will take place. If the plaintiff does not
file this form, the parties or their counsel may have to come back to
Court to explain why the form was not filed on time.
The plaintiff must explain to the Judge why the form was not filed on
time. This will cost both parties time and money.
How much does mediation cost?
Mediators, arbitrators and evaluators charge between $100 and $550 per
hour. Usually the parties split the cost.
If you do not have enough money to pay for a mediator, you may qualify for
free mediation. The Court uses the same rules for waiver
of court fees and costs to decide if you will qualify for free mediation
services.
There are also free mediation programs in the community, like the Office
of Human Relations (408-792-2300).
How long does mediation, arbitration or evaluation take?
Most mediations and evaluations can be completed in one session that lasts
3 to 5 hours. Most parties start ADR three – ten months after the complaint
is filed. But, you can start mediation (or other form of ADR) at any time
during your case — even before the lawsuit is filed.
- Getting ready for mediation
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Who should go to the mediation session?
All parties and decision makers, like managers, insurance
representatives, spouses, or consultants must go to the session. It is
important for everyone with authority to settle the case to go to the
session. That way, decisions that may help settle the case can be made
quickly. Otherwise, everyone would have to wait while one participant
checks with someone who has true authority.
What is the role of the mediator?
The mediator’s role is to help the parties explain their concerns and
understand each other. This makes it easier to come to a resolution. The
mediator will not give legal advice, or take sides with one party against
another.
What documents do I need to bring?
Most mediators ask the parties for a short and informal statement
(sometimes called a "Brief") before the mediation. Your mediation
statement should include:
- the facts of your case
- the law that applies to your case, and
- your proposal for resolution (settlement)
How do I prepare for mediation?
Look carefully at what each party is asking for. Review the case
and think about what you are willing to settle for. Think about what the
other parties want and have a list of possible solutions to suggest.
Also, make a list of questions you want to ask the other side and bring
any papers that support your case.
What should I expect?
Expect a positive, helpful experience. Mediators will ask you and the
other party questions. The mediator will help you focus on facts that may
help you reach a settlement. Be ready to discuss what you really want and
possible solutions.
Is mediation confidential?
Yes. Everything you say in mediation is confidential and cannot be
discussed outside the mediation. If you have any concerns about the
mediation staying confidential, talk to the mediator before your first
session.
To read the law that talks about mediation and confidentiality click here:
Evidence Code sections 1115-1128.
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- What happens if you need more time to complete
the mediation?
If you want more time to complete mediation process, you can ask the judge
for more time by filing what is called a “Stipulation and Proposed Order”.
(This is different from the ADR Stipulation and Order form; you must
prepare this form yourself.) File that form before your scheduled
Mediation Status Review Hearing.
All parties and their lawyers (if they have one) must sign the Stipulation
and Proposed Order. The mediator does not have to sign the Stipulation.
On the Stipulation you must say why you want more time, and the date of
your next mediation session. If the Court accepts your Stipulation, you
will get a new Mediation Status Review date.
You must include a self-addressed, stamped envelope with the
Stipulation.
- What happens if the case settles?
If you resolve your dispute in mediation, the plaintiff must file a notice
of settlement or dismissal.
If you are the plaintiff, you can dismiss the case or you can ask the
Court to hold the case over until all parties do what they have agreed to
do in the mediated agreement.
- What happens if you can’t reach an agreement
in mediation?
If you can’t settle your dispute in mediation, you must go to the
Mediation Status Review Hearing.
At the hearing, tell the Judge you have not settled. The judge will
probably give you a date for your trial.
The Court will NOT ask about what happened in mediation. Remember:
everything you say in mediation is CONFIDENTIAL. That means it is secret,
and you cannot talk about it outside the mediation. You must not talk
about what happens in mediation with the Court.
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- Evaluation forms - we want your feedback!
Each mediator or neutral evaluator on the Court’s ADR panel will give you
a form to fill out and return to the Court.
Your feedback gives us important information about the mediator,
arbitrator, or neutral evaluator’s performance and on our ADR program in
general. It also lets us see how well the mediation or neutral evaluation
process worked (or did not work) for you.
- List of court-approved mediators
The ADR Administrator has a list of mediators, neutral evaluators, and
private arbitrators who can help you with your case.
You can download this list from the
ADR section of the
court's main website.
You can also call the ADR Administrator. Look for the ADR
Administrator's number in the
Civil section of the court's phone list. For the hours the ADR
Administrator can be reached, see the business hours section of the
Downtown Superior Court web page.
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