Sample Forms and Descriptions
Why not minimize cost, avoid delay, and avoid risk of unreasonable outcomes? No one knows with certainty what will occur at a trial. Moreover, the stress of the court process in and of itself is to be avoided whenever possible. Parties are more in control and participate directly in making consensual agreements in mediation. Amiable agreements leave open the possibility of healing and improving future relationships. This is especially important in business and family centered disputes. Early resolution allows the parties to avoid the rigors and expense of discovery and to clear up misunderstandings before relationships deteriorate or rupture. Please see the form “A Client’s Guide to Mediation” for more information about how mediation works. I am always at your disposal to answer any questions you may have about the process.
This is a process where the parties wish to engage in mediation, but also wish to utilize arbitration of specified or remaining issues if mediation fails. Sometimes parties come close to resolution but can’t quite close the gap between their positions and, at the same time, do not want to “start over” or lose the ground they have gained. They can ask the mediator to make a decision to resolve the dispute. The mediator then becomes an arbitrator for that specific and limited purpose and renders an enforceable decision.
In what is often called “early neutral evaluation” ( because it is conducted before major litigation costs are incurred) the neutral provides a non-binding evaluation of the case based solely on its merits. The parties then use the assessment to inform their negotiations toward settlement. The neutral provides the opinion in whatever form is requested of the parties. Often times, this neutral is not retained to facilitate further negotiations. This is an informal process and, in some cases, the parties simply submit briefs or make oral arguments for an evaluation solely of legal issues. This is a good process when the parties need a credible neutral’s input but are confident of their ability to negotiate a settlement thereafter. This is also generally a quick and less expensive option.
A confidential listener is a neutral third party retained by the parties who obtains a PROPOSED FINAL OFFER from each party. Without disclosing the content, the neutral ADVISES THE PARTIES IF THEIR OFFERS ARE WITHIN A SPECIFIC RANGE. The range is usually agreed upon in advance as a mechanism for dividing the difference should the offers overlap. If the offers are outside the range, the neutral seeks to mediate a settlement.
Judge Dover wants to thank the Strauss Institute for Dispute Resolution, Pepperdine University School of Law, The California Judges Association and Justice Elizabeth Baron ( R ), as well as The Rutter Group California Practice Guide on ADR for much of the definitional content on this website.