The mediation process is confidential, and its success often depends upon that fact. This means, among other things, that parties and their representatives understand and agree:

  1. Mediation and all related activities are confidential to the fullest extent permitted by the laws and/or rules of court which govern their dispute. It is important that counsel explain, and clients understand, what is required by confidentiality, and its limitations. If a case is pending in a California state court see Evidence Code §§ 1115-1128. In other jurisdictions similar confidentiality provisions may apply (see, e.g., U.S. District Court for the Northern District of California, ADR Local Rule 6-12).

  2. When all mediation efforts are concluded all of the notes and other writings (as the word “writing” is defined by California Evidence Code § 250, and “writings” by Federal Rules of Evidence § 1001(1)) maintained by the mediator will be destroyed without notice to the parties or their counsel (or other representatives).

  3. The parties or their counsel (or other representatives) will not attempt in any way, or assist others, to compel the mediator to testify, produce documents, or provide other evidence in any forum or proceeding. Any party violating this provision hereby agrees to indemnify and hold the mediator harmless from any and all attorneys’ fees, legal costs, and other expenses, of whatever kind or nature, including but not limited to the time and expense spent by the mediator in resisting such efforts, at mediator’s then current hourly rate.
The Mediation Session
While mediation sessions tend to follow a similar pattern, they are by nature dynamic, and every mediation is different. How it unfolds depends on the needs of the parties and their counsel. The mediator is continually assessing those needs in discussions with the parties and counsel, to determine whether the mediation process is being effective, or needs to be adjusted.

Our mediation sessions typically begin between 8:30 and 9:00 a.m., with a private caucus or meeting of the mediator and plaintiffs and their counsel. Defendants and their counsel are asked to arrive at about 9:30 a.m., and the mediator then holds a similar private caucus with them. During these initial meetings, the mediator will discuss whether a joint session of all parties and counsel would be beneficial in helping to resolve issues.

Whether a joint session takes place or not, what generally follows is a series of private caucuses with the parties and their counsel, where issues and obstacles to resolution are discussed and evaluated; settlement demands and offers exchanged; and the mediator assists by engaging participants in a systematic analysis to “peel back” the dispute to its core issues, and keep the negotiations moving toward settlement.

Settlement Memorandum

When a case settles at mediation, it is generally “best practice” for the parties to sign a written memorandum to memorialize the terms before leaving the session. This helps to protect all concerned by avoiding “buyer’s remorse,” or other forms of “second thoughts.” It also minimizes the potential for disagreement about terms, which sometimes occurs when there is a delay in reducing an oral agreement to writing.

If the parties and their counsel do not have their own preferred form of written settlement agreement available at the session, the mediator will have a form of
Settlement Memorandum available to memorialize the terms of any agreement, until a final settlement document can be prepared.

Follow-up After Mediation

Not every mediation session results in resolution, of course. Sometimes the parties and their counsel need additional time to reflect on developments occurring during mediation, investigate further, or conduct additional discovery. Consequently, follow-up by the mediator is needed.

At the conclusion of any mediation session that does not result in resolution, the mediator will discuss with all the parties and their counsel what follow-up is appropriate.

Within one to two weeks after a mediation session that has not resulted in a resolution, it is our practice to contact all parties or their counsel (or other representatives), by telephone or E-mail, to discuss the matter further. When feasible, the mediator will try to keep negotiations going through telephone discussions and E-mail, and many cases are settled through such efforts. If the parties request, additional mediation sessions can also be scheduled.

For cases that later settle through discussions outside mediation, we ask that you advise us at the same time you notify the court.