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Early Mediation Initiative

The resolution of many disputes can be unnecessarily costly and time consuming. Though some disputes require a judicial finding and occasionally the substance of the dispute must be submitted to the appellate courts for greater scrutiny, experience has taught us that if the parties and their attorneys accommodate the resolution process, the vast majority of disputes can be resolved before it is necessary to engage in formal discovery, spend significant sums of money and devote an enormous amount of energy preparing cases that will almost certainly resolve via a negotiated resolution.

In state court proceedings, significant resources are often devoted to the discovery process. The Federal Rules of Civil Procedure have eliminated or greatly reduced the types of discovery wars that characterize civil litigation in the state court system. The initiative was drafted with the belief that many disputes would be resolved short of lengthy, expensive and often vexatious litigation if the parties were required to exchange documentary evidence and then participate in early mediation. The provisions of the proposed initiative are intended to reduce gamesmanship in litigation, encourage greater transparency and, thereby, impose less of a financial burden on the litigants. The provisions of the initiative are also intended to impose a sanction on those parties and their attorneys who frustrate the process by failing or refusing to exchange documents and who, by their actions, encourage unnecessary and time consuming litigation.

Mr. Kesten is working to have an initiative placed on the State of California 2008 ballot, which would, among other things, require pre-litigation mediation.


a. The purpose of this legislation is to encourage the use of mediation by litigants in the Superior Court of the State of California without abrogating the fundamental rights of any party. The intent of the initiative is accomplished by strongly encouraging parties to litigation mediate their claims after filing a court action and service on Defendants is complete but before Defendants or Cross Defendants file an answer, general denial or attack on the complaint and before statutory discovery begins. The mechanism for engaging in early mediation shall be as follows:

b. After the commencement of a legal action in the Superior Court of the State of California, Plaintiff(s) or Cross-Complainant(s) must offer, in writing, by a verifiable communication and within ten days of serving a party, a copy of this statute and an offer to engage in mediation with any and all Defendants and Cross Defendants. The verifiable communication of the offer to mediate shall toll all applicable time limits for all Defendants and Cross Defendants to file an answer, general denial or attack on the complaint or cross complaint or otherwise attempt to defeat the action for one hundred and twenty (120) days after service of the notice to mediate on at least one other party. A party’s right to seek a TRO, injunction or other form of immediate relief or court intervention remains unaffected by the language of this statute. The statute is not applicable to unlawful detainer actions.

c. The party receiving a communication from Plaintiff or Cross-Complainant proposing mediation must respond, by verifiable means, to the offer within thirty (30) days after receipt expressly stating a willingness to participate in the proposed mediation or refusal to participate. For good cause shown, the time within which a party is required to respond to an offer to mediate may be extended by any court having jurisdiction over the dispute or the parties can, by mutual written agreement, extend the time to respond to an offer to mediate for up to an additional sixty (60) days.

d. If Plaintiff’s or Cross-Complainant’s offer to mediate is accepted, the mediation involving Plaintiff(s), Cross-Complainant(s) and all named Defendants and Cross Defendants shall take place as early as practical within the one hundred and twenty (120) day tolling period. The one hundred and twenty (120) day tolling period and the time by which Defendant(s) and Cross Defendant(s) must file an answer, general denial or attack on the pleadings may be extended by the court in which the action is filed.

e. The mediation shall be conducted at a location mutually agreed to by the parties engaging in the mediation. If the parties are unable to agree on a location for the mediation, the presiding judge of the court having jurisdiction over the dispute, or any court personnel as may be appointed by the presiding judge, shall designate a location upon the ex parte request of any party to the proposed mediation. Any party seeking court intervention shall give no less than twenty-four (24) hours notice to all affected parties of that party’s intent to appear in court and seek judicial assistance. The party seeking judicial assistance in the setting of a mediation, extending the time for a party to respond to the complaint or cross complaint, or any other matter addressed herein shall submit a written application to the court.

f. Subject to claims of privilege, each party may request from other parties, in writing, the production of documents and things relevant to the dispute. The presiding judge of the court having jurisdiction over the matter, or any court personnel as may be appointed by the presiding judge, shall have the authority and discretion to exclude from evidence at time of trial or other proceeding any documents or things not produced in mediation pursuant to a request.

g. The mediator shall be selected by mutual agreement of the parties and to the extent feasible the selection shall not impose a monetary burden disproportionate to the amount in controversy on any party agreeing to engage in mediation. If a mutually agreeable mediator cannot be selected and retained by the parties to the mediation within sixty (60) days after all parties have responded to an offer to mediate, any party may petition the court by means of an ex parte appearance, with no less than twenty-four (24) hours notice to all other parties. The petitioning party shall submit a written application to the court. The presiding judge of the court having jurisdiction over the matter, or any court personnel as may be appointed by the presiding judge, shall select and appoint a mediator from the names of proposed mediators submitted by the parties and designate a location for the mediation and date by which the mediation is to take place. The applicable statutes controlling the time for a Defendant or Cross Defendant to enter an answer, general denial or attack on the pleadings shall be tolled until the conclusion of the mediation provided it occurs on or before the date set by the court. Defendants and Cross Defendants shall have ten (10) days after the conclusion of meditation or ten (10) days after the last date to mediate set by the court, whichever is earlier, to file an answer, general denial or attack on the pleadings.

h. If a Plaintiff or Cross-Complainant fails to initiate or participate in mediation, or if a Defendant(s) or Cross Defendant(s) refuses to participate in the mediation process that party shall be required to pay the attorney fees and costs of the opposing party(s) in the event a civil action is litigated to judgment and provided the party not participating in or refusing to initiate or engage in mediation fails to prevail in the litigation. If the prevailing party in the court action fails to offer other parties the opportunity to mediate or refuses to mediate when such an offer is made, that party shall not be entitled to recover costs of suit or attorney fees of the opposing parties whether or not that party would otherwise be entitled to such recovery by contract or statute.

i. Superior Court filing fees shall be increased one hundred dollars ($100.00) to offset the court’s administrative costs associated with coordinating early mediation of claims.


Steve Kesten

Steve Kesten practices law with his colleagues and friends at their office located in San Anselmo, California. Since moving his practice to Marin County in 1994, Steve has assisted small and medium sized businesses, individuals and professionals resolve disputes involving a broad range of matters including employment, real property, contracts… MORE >

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