The Basics of California Mediation

If you have suffered damages are otherwise suffered losses due to the negligence of another (in a breach of contract action, personal injury action, etc.), then you have several options for negotiating an alternative dispute resolution (ADR) that includes the possibility of mediation.

What is ADR?

In California, as in all states, litigating a claim can be quite complicated, risky, expensive, and time-consuming. For example, you might file an injury claim but still not have an opportunity to litigate the claim at trial until one year down the line (or even later!). After years of heavy-handed litigation, you may find that pursuing the claims has had an overall negative effect on your life.

Further, there is no guarantee that you will succeed in litigating your claim. The court's decision may result in you being awarded fewer damages than you might have otherwise expected. Alternatively, the court may decide against you and award you nothing. Over the course of litigation, each party must also overcome the stress, emotional strain, and various financial costs related to the litigation process.

Alternative dispute resolution is a means by which California plaintiffs minimize the costs - as well as the risks of loss - associated with normal litigation procedures. In California, unless you manage to negotiate a very early settlement, you will almost certainly encounter some form of ADR. In most cases, that ADR will be mediation, and is encouraged (and sometimes ordered) by the court.

Let's take a look at mediation and how it works.

Understanding Mediation

So, what is mediation?

Mediation can be court-ordered, but in the majority of cases, it is voluntary. Depending on the county in which your claim is being litigated (and the circumstances of your case), the court may heavily encourage you to pursue mediation. By pursuing mediation, the parties can keep a legal conflict away from the courts and avoid clogging up the courts. Ultimately, California courts want to promote a peaceful, negotiated resolution to legal conflicts. A court would rather you and the defendant reach an agreement than have to preside over litigation that could cost the court tens of thousands in financial, organizational, and human resources.

Mediation is an informal dispute resolution process which involves a neutral, third-party mediator who is selected - either by court appointment, or based on an agreement between the involved parties. There are several different parties allowed at mediation, from the attorneys for each side, to insurance adjusters, to the plaintiffs and defendants, and the mediator. Importantly, however, all communications made during mediation remain confidential (unless one of the parties makes a revelatory statement that qualifies as admissible). To avoid making a statement that could hurt your case, it's important to enter mediation with a skilled and experienced California personal injury attorney.

The entire purpose of mediation is for each party to reach a fair compromise (and thereby avoid protracted litigation). The intention is not for each party to aggressively (or in an otherwise hostile manner) approach the negotiation. It is a process that is fundamentally meant to be "cooperative" rather than "adversarial," in stark contrast to the exclusively "adversarial" nature of standard litigation.

The mediator is tasked with helping maintain a collegial, cooperative atmosphere during mediation, and with guiding the conversation so that the concerns and arguments of each party are respectfully heard. The mediator may guide the process by putting forth opening statements, allowing each side to explain their perspective on the case, and finally, by communicating potential settlement offers (and the reasoning for such offers) to each party, separately.

After initial arguments have been heard, each party moves to separate rooms. Communication between parties is then made solely through the mediator, who utilizes this barrier to soften the conversation and help negotiate a potential settlement compromise.

Reaching a Settlement

Once a compromise has been reached between the parties, they may enter into a settlement agreement, which involves the plaintiff giving up their claim (and right to litigate such claim further) and, usually, the defendant paying out damages (in an agreed upon amount) in response.

It's worth noting that a settlement need not actually result from mediation. In some cases, the defendant will simply not be amenable to negotiation, or will severely undervalue the plaintiff's claim - when that happens, it makes more sense to avoid settlement and push through with litigation.

A fair and reasonable settlement agreement depends entirely on the "risk" of pursuing litigation for the involved parties. For example, if you have a provably strong case (i.e., the evidence is in your favor, you have retained excellent, qualified experts, and California law supports your claims) then you will be able to demand more during settlement negotiations, as the defendant may lose even more in damages if they avoid settlement and lose at trial. Further, the defendant may be forced to pay attorney's fees if they lose at trial, which can compound their losses.

The key to advantageously negotiating a settlement is therefore to present a convincing argument that your case is much stronger than your opponent's. Mediation gives you an opportunity to do so in a manner that is less adversarial and thus more likely to be absorbed and reasonably contemplated by the defendant.


To setup a free consultation with an experienced and skilled San Jose personal injury and breach of contract attorney, call the Law Offices of Brian O' Grady at (650) 318-6131 today.