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Glossary

Every practice

Mediation

A confidential settlement negotiation run by a neutral mediator who helps the parties reach agreement but has no power to decide the case.

What it is

In mediation, the parties and their lawyers meet with a neutral, often a retired judge or experienced trial lawyer, who carries offers between rooms and tests each side's position. Nothing is decided unless both sides agree. Many plaintiff injury and employment cases that settle after suit settle at or soon after mediation.

The California rule

Evidence Code sections 1115 to 1128 make mediation communications and writings confidential and generally inadmissible (section 1119). In Cassel v. Superior Court (2011), the California Supreme Court held that the protection covers even private talks between a client and the client's own lawyer during mediation. Because of that, Evidence Code 1129 requires a lawyer to give the client a printed, one-page disclosure of the confidentiality rules and get the client's signed acknowledgment before the client agrees to mediate. A written settlement signed at mediation is admissible if it says it is enforceable or binding (section 1123), and a settlement can be enforced by motion under Code of Civil Procedure 664.6.

Other forums have their own versions. The Civil Rights Department offers free mediation of employment complaints, and workers' comp cases go to a mandatory settlement conference before a WCAB judge.

Why it matters to a plaintiff firm

Preparation decides the outcome: a mediation brief built on the chronology and specials, final lien figures, the client's settlement authority, and the 1129 acknowledgment signed and filed. Bring a written term sheet so the deal is signed before anyone leaves.

Sources

  1. Evidence Code 1119
  2. Evidence Code 1129
  3. Civil Rights Department: Dispute resolution

General information about California and federal rules, not legal advice. Rules change and every case turns on its facts: check the statute and your own analysis before relying on a date or a figure.

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