Mediation is a flexible, non-binding, confidential process in which a Neutral (mediator) facilitates settlement negotiations. The informal session typically begins with a presentation of each side's view of the dispute, either through counsel or the clients. The mediator, who may meet with the parties in joint and/or separate sessions, works to:
- Improve communication between the parties;
- Assist the parties in clarifying and communicating their interests and in understanding those of the other parties;
- Probe the strengths and weaknesses of each party's legal positions; and
- Identify areas of agreement and help generate options for a mutually agreeable resolution.
Mediation can extend beyond traditional settlement discussion to broaden the range of resolution options, often by exploring the disputants' needs, interests, and priorities that may be independent of the legal issues in controversy. Mediation is particularly effective when the parties have an ongoing and continuing relationship, as mediation normally leads to better relations between the parties.
The mediator has no power to impose a settlement and does not attempt to coerce a party to accept any proposed terms. If no settlement is reached, the case proceeds as if mediation had not taken place. And, depending upon the nature of the case, this could mean back to litigation, arbitration, or administrative hearing.
Confidentiality is the Key
The rules governing mediation in California are contained in several statutes and in case law interpreting those statutes. The mediation statutes are contained at California Evidence Code Section 703.5 and in Sections 1115 to 1128. The key concept regarding mediation is confidentiality. In very broad terms, all statements made in connection with mediation can be precluded from introduction as evidence at a hearing unless both parties explicitly waive mediation confidentiality. Essentially, by statute, the only statement or writing made in connection with mediation which can be disclosed without the express consent of both parties is the agreement reached during the mediation itself. Except for limited exceptions created by the courts, nothing else said or written during or in the course of the mediation, or for the purpose of the mediation, can be received in evidence, compelled in discovery, or compelled as testimony in any proceeding. (California Evidence Code Section 1119; 1121, 1123).
While California does not currently have any standards for mediators, many other states require a certain level of education, training and experience. For example, National Judicial College (NJC) offers a 40-hour Civil Mediation certification course that is often times used for purposes of establishing minimal qualification standards of other states. NJC is the only American Bar Association-sponsored and approved "judge's college," providing judicial education nationally since 1964.