PULLING THE PLUG ON YOUR COURT ORDERED MEDIATION: BALANCING YOUR OBLIGATION TO TAKE PART IN MEDIATION VERSUS PREVENTING YOUR MEDIATOR FROM HARMING YOUR CASE.

We practice law in a time when almost every case in both state and federal court will be mediated before trial. Mediation is a non-binding settlement conference where the parties and their counsel meet with a mediator in an attempt to settle their case before trial.

Whether the parties agree to private mediation before a professional paid mediator or take part in court ordered mediation with a pro bono mediator (a mediator who does not charge a fee), mediation can be a great endeavor for the majority of cases. The hope is that each case will settle through the mediation process.

One of the most important aspects to mediation is selecting the right mediator. Selecting the right mediator is easy when the parties have agreed to private mediation and can agree on a professional private mediator. However, not every case is amenable to private mediation and sometimes you are subject to court ordered mediation and have nothing to do with the selection of the mediator.

Although every mediator is supposed to be trained, qualified, and impartial, the reality is that some of the pro bono mediators on the court panels throughout the State of California fail to have what it takes to be an effective mediator. Whether they are simply unqualified, fail to have the background and experience in the specific area of law, or are more concerned with their percentage of settled cases as opposed to the specific case before them, the hope is that the court ordered mediator will do no harm to your case.

On those rare occasions when you cannot trust your mediator to mediate your case, it is important to quickly control the process and if necessary to end the mediation before your mediator harms your case.

We recently participated in a court ordered mediation in a personal injury case with a very young mediator who was a business attorney with no personal injury experience. The case involved a trip and fall accident on a spill in a retail store where the plaintiff sustained a patella fracture with surgery and a rotator cuff tear also with surgery. The plaintiff’s economic damages were $45,000. All parties submitted detailed mediation briefs before the mediation. Defendants disputed liability, as well as the nature and extent the of the plaintiff’s injuries and damages. Within minutes of the mediation starting, the mediator proclaimed in front of all counsel that he viewed the case as 100% liability on the defendants and valued the case at $15,000. It took the attorneys about 10 minutes to agree to end the court ordered mediation and to schedule private mediation. The case thereafter settled for $150,000 at private mediation.

In another recent court ordered mediation, before a non-lawyer pro bono mediator, there was a complete lack of confidence in the mediator. The mediator had no real personal injury litigation experience. The mediator was more concerned about getting the case settled for his personal statistics then getting the case settled for the right amount of compensation for our clients. When our clients rejected the defendants’ final settlement offer, the mediator asked to have a joint session with all parties and counsel present to explain to plaintiffs the settlement offer and his view of the case. In a respectful manner, we refused to take part in the joint session and ended the mediation. Plaintiff’s rejected defendants’ final settlement offer and we simply did not want to give the mediator an opportunity to harm our case.

With court ordered mediation and the growing number of pro bono mediators who are inexperienced and unqualified there is the ever increasing possibility that a mediator can do or say something to harm your case. If you do not trust your mediator the process can be difficult and frustrating. Do not be afraid to trust your instincts and to speak up and if necessary, to end the mediation before your mediator harms your case.

A well trained and qualified mediator will do no harm to your case and can employ their skills, strategies and style to meet the needs of the parties and hopefully, get the case settled.

As always, if you need help with your case, call us!

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