Mediation: Court of Appeal Rules that Court Cannot Force Mediation Upon Parties or Sanction Party for Failure To Mediate
Party Timely Sought to Withdraw from Mediation Prior to Appointment of Mediator
The “take away” of this case comes in its opening paragraph:
“Petitioners (defendants below and their attorney) seek a writ to vacate an order sanctioning them for failing to personally attend a mediation session and requiring them to participate in further mediation. Plaintiffs, real parties in interest, respond by urging us to rule that once an attorney orally agrees to mediate a dispute neither that attorney nor the client may withdraw consent absent court approval upon a showing of good cause; we hold otherwise. We grant relief because (1) the court had no authority to mandate mediation, (2) there was no enforceable agreement to mediate; and (3) in any event, there was no failure to comply with the court’s mediation order.” Kirschenman v. Superior Court of Contra Costa County [Hammons et al., real parties in interest], 30 Cal.App.4th 832, 833-834, 36 Cal.Rptr.2d 166 (1994).
Distinctions matter. In Lu v. Sup. Ct., 55 Cal.App.4th 1264 (1997), the court refused to extend the holding of Kirschenman: “[W]e do not think it appropriate to extend Kirschenman to complex litigation to hold that, absent express statutory authorization, courts are powerless to devise procedures to expedite and facilitate the management of complex cases.” Id. at 1290-91. Lu involved complex litigation, a referee rather than a mediator, and a settlement conference that was mislabeled as “mediation.”
Mission Statement
“I was never ruined but twice — once when I lost a lawsuit, once when I won one.” — Voltaire
The purpose of this blawg is to provide an up-to-date discussion of California case law and developments concerning mediation and arbitration — the two most common varieties of “alternative dispute resolution” (ADR). For me, this blawg is a natural offshoot of another project, CalAttorneysFees, to which I am a co-contributor, along with my long-time colleague Mike Hensley. As the Mission Statement of CalAttorneysFees notes, attorney’s fees are often (too often) the “tail that wags the dog” of litigation. Hence, my interest in ADR as an alternative that at its best is more efficient and economical, and less painful than a lawsuit. The subject of ADR is well worth ongoing exploration and discussion — and I invite reader’s comments.