Mediation: Alternative Dispute Resolution (ADR)

ADR

Mediation

Arbitration

Mediation is a form of alternative dispute resolution in which a neutral third person helps the parties reach a voluntary resolution of a dispute. Mediation is an informal, confidential, and flexible process in which the mediator helps the parties to understand the interests of everyone involved, and their practical and legal choices. It can help people resolve civil, family, juvenile and other matters in a less adversarial setting. Court mediation programs have been shown to save the parties time and money, improve satisfaction with the court’s services and reduce future disputes and offenses.

The mediator helps the parties to:

communicate better,
explore legal and practical settlement options, and
reach an acceptable solution of the problem.

The mediator does not decide the solution to the dispute; the parties do. Mediation can result in a legally enforceable contract agreed to, in writing, by the parties.

Mediators are allowed to charge for their time, although some court-sponsored programs are free to all Monterey County residents.

California Superior Courts increasingly encourage and offer mediation for a broad range of issues and case types. The Monterey Superior Court currently provides a court-directed mediation program and facilitates a small claims and unlawful detainer mediation program . The Small Claims and Unlawful Detainer Mediation Program is at no cost to the litigants if both parties are self-represented. In addition, the court also offers mediation services for child custody and visitation disputes.

Mediation: Frequently Asked Questions

When is mediation appropriate?

Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties and help them communicate with each other in a constructive manner.

When cases are resolved through mediation, the parties may save money that they would have spent on attorney’s fees, court costs, and experts’ fees, which can total thousands of dollars.

When may mediation be inappropriate?

Mediation may not be effective if one of the parties is unwilling to cooperate. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. For example, mediation may not be a good choice if the parties have a history of abuse or victimization.

Some cases may also present unique issues that would require the Court to determine the outcome or resolution.

How do I find a mediator?

Many private mediators and organizations offering mediation services have websites or advertise in various publications, including the yellow pages. Private mediators are allowed to charge for their time.

Click here for mediators with the Monterey County Bar Association

In court-directed mediation the court selects your mediator from a panel of local attorneys who have been chosen to be a part of the court-directed mediation program. Many of the attorneys on the panel are also available for private mediations.

Click here for Court-Directed Mediator Panel List.

How much does it cost?

There is no cost to mediate a small claims or unlawful detainer action filed in the Monterey County Court where both parties are self-represented.

In all other civil cases, if the parties request the use of Court-Directed Mediation as a way of resolving the dispute, a mediator from the Court-Directed Mediator Panel List is assigned to the case. The mediator does not charge for preparation time and the first 2 hours of mediation. If the mediation session exceeds two hours, and the parties and mediator agree to continue, the mediator may charge the parties $200.00 per hour for up to 8 hours. The mediator's charges are typically split between the parties.

If the parties choose a private mediator, they will be responsible for paying the mediator's regular rate for all services. The market rates for private mediators can range from $200-$1,000 per hour.

Several members of the Court-Directed Mediation Panel are available for private mediations.

Who must attend the mediation?

All parties, their counsel (if the parties are represented,) and persons with full authority to settle the case must personally attend the mediation, unless excused by the court or mediator for good cause.

What is the role of the mediator?

The mediator is a neutral intermediary whose role is to help the participants reach a settlement. The mediator will not impose a settlement, but will assist the parties in exploring settlement options. Generally, the mediator does not communicate with the court except to file a Statement of Agreement/Non-Agreement at the conclusion of mediation.

Is mediation confidential?

Except as otherwise provided by California law, all communications, negotiations, or settlement discussions in the course of a mediation or mediation consultation are confidential and are not admissible or subject to discovery. This encourages the parties to freely communicate when mediating a resolution to their dispute. The mediation participants may be required by the mediator to sign a confidentiality agreement.

How do I prepare for the mediation?

You and your attorney should be prepared to discuss all relevant issues in your case. Before the mediation session, you and your attorney should discuss the mediation process and understand it is confidential. You should be prepared to state your position and to listen carefully to the other side. Persuasive and forceful communication is permitted, but civility and mutual respect is vital. Hostile or argumentative tactics are likely to cause positions to become entrenched and thus discourage progress. Some mediators also require pre-mediation briefs to familiarize themselves with the issues before the mediation begins. These briefs may be required to be provided to the other parties in the mediation, but the mediator may also allow the parties to provide additional written (or oral) statements that are only shared with the mediator.

How do I make a complaint about a mediator?

If you have a complaint about a mediator, please refer to the court's Mediator Complaint Procedure.