In Southern California and, particularly, in Los Angeles County, we have developed what is known as a “mature” mediation environment. Most attorneys and many litigants are familiar with the process, and regularly participate in mediations. But there is also a negative aspect to a mature mediation environment: sometimes the courts, the attorneys (and even the mediators) forget that mediation is a voluntary process.

For example, attorneys in the Los Angeles County Superior Courts often believe that they have been ordered to mediation at the initial Case Management Conference. However, under Code of Civil Procedure section 1775.5 the Court cannot order a case into mediation where the amount in controversy exceeds $50,000. In my role as an attorney I have had occasion to respectfully remind a judge of that limitation when they have attempted to order one of my cases into mediation. Usually, they have accepted my reminder with the appropriate judicial temperament.

And, if further questioned on this issue by a judicial officer, the voluntary nature of mediation was reaffirmed Jeld-Wen, Inc. v. Superior Court of San Diego County (2007) 146 Cal. App. 4th 536. In Jeld-Wen, the trial court issued a case management order appointing an individual to serve as the “Mediator and/or MSC Judge” to mediate and conduct settlement conferences for a maximum of 100 hours at an hourly rate of $500. The order provided that all parties were to appear at the mediation with their appropriate representatives and pay their pro rata share of the mediator fee. When one of the parties failed to appear, was sanctioned and ordered to appear at the next mediation session, the Court of Appeal issued a writ of mandate holding that the trial court did not have the authority to order a party to attend and pay for private mediation.

The Court of Appeal stated that “the essence of mediation is its voluntariness and we reject the suggestion that trial courts presiding over complex cases have the inherent authority to force a party to attend and pay for mediation over the party’s express objection because such an order conflicts with the statutory scheme pertaining to mediation.” The Court went on to state that, “while trial courts may try to cajole the parties in complex actions into stipulating to private mediation . . . they cannot be forced or coerced over the threat of sanctions into attending and paying for private mediation as this is antithetical to the entire concept of mediation.”

Mediation works best in an environment where the parties are both ready and willing to participate in the mediation process. Except for cases where the amount in controversy is less than $50,000, the decision as to when and if to mediate is controlled by the litigants, not by the courts. I believe that all cases should ultimately be mediated, but the parties and their counsel should be the ones to decide when the timing is right.

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