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Mediation & Evaluation

If I want mediation or neutral evaluation, how do I start?

Contact the other party, or their lawyer, and ask if they are willing to try ADR. If you and the other parties agree on what kind of ADR to use, start the ADR process by calling the ADR Administrator. Look for the ADR Administrator's number in the Civil section of the court's phone list. For the hours the ADR Administrator can be reached, see the business hours section of the Downtown Superior Court web page.

When everyone agrees to use ADR, the plaintiff or the plaintiff’s lawyer must file an ADR Stipulation (ADR Stipulation and Order form ) with the Court. This form tells the Court that the case is going to ADR, the kind of ADR you will use, and who the neutral (the mediator or evaluator) is. It also tells the Court the date of the ADR session.

If you do this before your first Court appearance (the Case Management Conference), you may be able to skip your first court date. When you agree to try ADR the court will give your extra time to try and settle, and will give you a new court date on a later day.

If you and the other parties cannot agree on what kind of ADR to use, each party can talk to the judge at your first Court appearance, and the judge will decide what to do next.

How do I find a mediator, arbitrator or neutral evaluator?
The ADR Administrator has a list of mediators, neutral evaluators, and private arbitrator who can help you with your case. You can access, search and print these lists from the Civil Division ADR Providers section of this website (or go directly to Finding an ADR Provider, Finding a Judicial Arbitrator, or Finding a CESC Neutral). You can also find a mediator, arbitrator or neutral evaluator:

What do I look for in a mediator?
In mediation, experience with the mediation process can be much more important than experience with the law that the case involves. Look for a mediator with a lot of experience in mediations. Choose someone with good people skills who you believe will help settle the case.

What do I look for in a neutral evaluator?
Choose someone with experience in the law of your case. The evaluator will give you an opinion on the likely trial outcome of your case. The more experience, the better. You also want someone with good people and negotiating skills.

What do I look for in a private arbitrator?
Choose someone with experience in:

  • the law of the case
  • civil trials, and
  • arbitration

Choose someone you think will be fair to all parties, who can listen, and who can sort out conflicting facts and legal questions.

How do we schedule our first ADR session?
You or your lawyers will call the mediator or evaluator to schedule your first ADR session. The Court does not set up hearings for mediation, arbitration, special masters, or neutral evaluation. You or your lawyer must do this.

Where are the ADR sessions held?
The ADR sessions are usually held at the mediator or evaluator’s office. Or, if the mediator or evaluator doesn’t have an office available, they are held at a place that all parties agree on.

Do I have to file a form to start mediation or other type of ADR?
The plaintiff (or his/her attorney) has 20 days after the Stipulation (agreement to use ADR) to file an ADR Stipulation and Order Form with the Court. This form tells the Court who the mediator, arbitrator or evaluator will be, and when the first session will take place.

If the plaintiff does not file this form, the parties or their counsel may have to come back to Court to explain why the form was not filed on time. The plaintiff must explain to the Judge why the form was not filed on time. This will cost both parties time and money.

How much does mediation cost?
Mediators, arbitrators and evaluators charge between $100 and $550 per hour. Usually the parties split the cost. If you do not have enough money to pay for a mediator, you may qualify for free mediation.

The Court uses the same rules for waiver of court fees and costs to decide if you will qualify for free mediation services. There are also free mediation programs in the community, like the Office of Human Relations (408) 993-4100 ).

How long does mediation, arbitration or evaluation take?
Most mediations and evaluations can be completed in one session that lasts 3 to 5 hours. Most parties start ADR three to ten months after the complaint is filed. But, you can start mediation (or other form of ADR) at any time during your case — even before the lawsuit is filed.

Who should go to the mediation session?
All parties and decision makers, like managers, insurance representatives, spouses, or consultants must go to the session. It is important for everyone with authority to settle the case to go to the session. That way, decisions that may help settle the case can be made quickly. Otherwise, everyone would have to wait while one participant checks with someone who has true authority.

What is the role of the mediator?
The mediator’s role is to help the parties explain their concerns and understand each other. This makes it easier to come to a resolution. The mediator will not give legal advice, or take sides with one party against another.

What documents do I need to bring?
Most mediators ask the parties for a short and informal statement (sometimes called a "Brief") before the mediation. Your mediation statement should include:

  • the facts of your case
  • the law that applies to your case, and
  • your proposal for resolution (settlement)

How do I prepare for mediation?
Look carefully at what each party is asking for. Review the case and think about what you are willing to settle for. Think about what the other parties want and have a list of possible solutions to suggest. Also, make a list of questions you want to ask the other side and bring any papers that support your case.

What should I expect?
Expect a positive, helpful experience. Mediators will ask you and the other party questions. The mediator will help you focus on facts that may help you reach a settlement. Be ready to discuss what you really want and possible solutions.

Is mediation confidential?
Yes. Everything you say in mediation is confidential and cannot be discussed outside the mediation. If you have any concerns about the mediation staying confidential, talk to the mediator before your first session. To read the law that talks about mediation and confidentiality, see: Evidence Code sections 1115-1128 .

If you want more time to complete mediation process, you can ask the judge for more time by filing what is called a “Stipulation and Proposed Order”. (This is different from the ADR Stipulation and Order form; you must prepare this form yourself.) File that form before your scheduled Mediation Status Review Hearing.

All parties and their lawyers (if they have one) must sign the Stipulation and Proposed Order. The mediator does not have to sign the Stipulation. On the Stipulation you must say why you want more time, and the date of your next mediation session.

If the Court accepts your Stipulation, you will get a new Mediation Status Review date. You must include a self-addressed, stamped envelope with the Stipulation.

If you resolve your dispute in mediation, the plaintiff must file a notice of settlement or dismissal. If you are the plaintiff, you can dismiss the case or you can ask the Court to hold the case over until all parties do what they have agreed to do in the mediated agreement.

If you can’t settle your dispute in mediation, you must go to the Mediation Status Review Hearing. At the hearing, tell the Judge you have not settled. The judge will probably give you a date for your trial.

The Court will NOT ask about what happened in mediation. Remember: everything you say in mediation is CONFIDENTIAL. That means it is secret, and you cannot talk about it outside the mediation. You must not talk about what happens in mediation with the Court

Each mediator or neutral evaluator on the Court’s ADR panel will give you a form to fill out and return to the Court. Your feedback gives us important information about the mediator, arbitrator, or neutral evaluator’s performance and on our ADR program in general. It also lets us see how well the mediation or neutral evaluation process worked (or did not work) for you.

The ADR Administrator has a list of mediators, neutral evaluators, and private arbitrators who can help you with your case. You can access, search and print these lists from the Civil Division's ADR Providers section of this website. You can also call the ADR Administrator. Look for the ADR Administrator's number in the Civil section of the court's phone list. For the hours the ADR Administrator can be reached, see the business hours section of the Downtown Superior Court web page.

More Self-Help ADR Information