Civil ADR Program - Options
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What are my ADR options?
The Court sponsors three highly effective ADR programs: Judicial Arbitration, Civil Mediation and Early Neutral Evaluation, each described below. JUDICIAL ARBITRATION In Judicial Arbitration, each side in the dispute presents its case, including evidence, to a neutral third party called an “arbitrator,” rather than to a judge. The arbitrator, who is an attorney on the Court’s Judicial Arbitration Panel, issues an award based on the evidence just as a judge would, within a time frame set by the Court. Although evidence is presented, Judicial Arbitration is a less formal process than litigation. Judicial Arbitration is nonbinding, which means that the participants in the case are not required to accept the arbitrator’s award. A party may instead request a “trial de novo,” which returns the case to the Court’s calendar as if the arbitration had not occurred. If the parties do not request a trial de novo, they are accepting the arbitrator’s award as a final decision. A case may be ordered into Judicial Arbitration upon the stipulation of the parties to pay the $150 Judicial Arbitration Fee. A case referred to the Judicial Arbitration process can be withdrawn from the process before the arbitration session only by Court order. Parties may seek private arbitration outside the Court’s Judicial Arbitration program. If the parties agree to binding arbitration, they are waiving their right to a trial. CIVIL MEDIATION In Civil Mediation, a neutral third party called a “mediator” helps participants in the dispute create their own resolution. Unlike an arbitrator, the mediator makes no decision or findings of facts of the case and makes no award. Rather, the mediator helps facilitate a discussion in which the parties reach a mutually agreed upon settlement. To accomplish this, mediators foster communication among the parties to:
One of the primary goals of mediation is enhancing the future relationship of the parties involved in the dispute, so the process is less adversarial and formal than either litigation or arbitration. For example, the rules of evidence and formal court procedures do not apply to mediation. Sometimes mediation does not result in an agreement or resolution. In these cases, the parties have the right to return to court for a litigated decision. If the case returns to court, the mediator cannot be called to testify or produce notes or records of the mediation, as the rules of evidence are not the same for mediation as they are for litigation. Mediators in the Court’s Civil Mediation Program are all experienced attorneys who have received training and have the experience required by California law to be mediators in a court-connected mediation program. Survey results of participants in mediation consistently demonstrate a high satisfaction rate with both the results of the mediation and with the process. Because the resolution is determined by the parties and is not imposed on them, settlements achieved in mediation are upheld easily by the parties, and the agreements reached help to foster positive future relationships. EARLY NEUTRAL EVALUATION Early Neutral Evaluation (ENE) provides parties and their counsel, on a voluntary basis and in a confidential session, the opportunity to make summary presentations of their claims and defenses and receive a non-binding evaluation by an experienced neutral called an “evaluator” with subject matter expertise. The evaluator, an experienced attorney with expertise in the subject matter of the case, will convene an informal meeting of clients and counsel. At the informal meeting, each side will informally present evidence and arguments supporting its case without regard to Rules of Evidence and without direct or cross-examination of witnesses. The evaluator will ask clarifying questions after the initial presentations, and then each side may present a responsive presentation. Following the presentations, the evaluator will identify areas of agreement and disagreement, clarify and focus the issues, and encourage the parties to enter procedural and substantive stipulations. The evaluator will then prepare an evaluation, outside the presence of the parties, which may include an estimate, where feasible, of the likelihood of liability and the dollar range of damages, and an assessment of the relative strengths and weaknesses of each party’s case. If requested by the parties, the evaluator will also facilitate settlement discussions. |