Mediation can be used to resolve conflicts large and small, personal and commercial. However, the average person is much less familiar with mediation than alternatives like litigation, which can lead to misconceptions. For example, you may hesitate to consider mediation if you believe you have fewer rights during the process.
This could not be further from the truth. Mediation is not only more flexible and effective than other forms of dispute resolution, but it also offers you rights that aren’t found elsewhere. Below, we explain how California intends mediation to be used and the principles that protect your rights during the process.
The Purpose of Mediation Under California Law
Mediation has been a valued alternative dispute resolution (ADR) method in California for decades. State public policy favors methods that allow parties to work together to resolve disputes without requiring court intervention. That is precisely what mediated negotiations accomplish.
During mediation, two or more parties meet under the guidance of a neutral third-party mediator to resolve disputes. The goal of these meetings is for the disputants to collaborate on finding solutions rather than presenting arguments and having a judge or adjudicator decide matters on their behalf. The mediator helps the parties achieve this by promoting clear communication, encouraging collaborative approaches over adversarial ones, and providing an unbiased outside viewpoint as a touchstone for negotiators.
However, the best mediator in the world cannot help parties resolve disputes unless the parties’ rights are respected. These rights are less widely known than others, but they are crucial to successfully resolving disputes.
Your Rights During the Mediation Process
So, what are your rights while you participate in mediation? California laws and regulations require mediators to consider the following as fundamental principles of equitable dispute resolution:
The California Rules of Court specifically name “voluntary participation” as a critical element of the proocess. You do not have to agree to mediate a dispute unless you genuinely want to do so.
While certain areas of law may require parties to attend mandatory court mediation programs, this does not violate the principle of voluntary participation. You may be ordered to attend meetings, but you do not need to participate in the process. The Rules of Court specifically state that mediators must “Respect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time.” This is true even in court-ordered programs.
The same rule names “self-determination” as a fundamental principle in successful dispute resolution. Self-determination means that you have the right to participate in the process and decide for yourself whether to make a decision or continue the negotiation process.
Your mediator should inform you of this right when the proceedings start. They should also make it clear that “any resolution of the dispute in mediation requires a voluntary agreement of the parties.” In other words, you do not have to agree to any specific solution if it does not satisfy you. Furthermore, no one may force or coerce you into agreeing to a solution or continuing to participate.
Under the California Evidence Code section 1119, all materials used, admissions made, and other statements produced during mediated negotiations are fully confidential. Additionally, these materials cannot be used during a court case if either party withdraws from negotiations.
The goal of keeping these materials confidential is to encourage open negotiations. Since everyone involved knows that they are off the record, it’s easier to have candid conversations about needs, preferences, and expectations. However, this does mean that withdrawing from the process requires you to rebuild evidence for your claim in any subsequent litigation from the ground up.
Mediators and attorneys must obtain their clients’ informed consent before beginning mediation. Under Evidence Code section 1129, attorneys must clearly inform their clients of the confidentiality restrictions involved in the process. Similarly, the Rules of Court require mediators to notify all participants that all agreements reached during the proceedings must be voluntary.
Informed consent requirements ensure that everyone involved understands their rights and options. If you were not informed of these rights before beginning, you did not have all the information to fully and freely participate in the process.
Consequences of Choosing Litigation After Mediation
The principles of self-determination, voluntary participation, confidentiality, and informed consent are intended to place all parties on equal footing during negotiations. They also permit participants to walk away from the process at any time and pursue litigation instead.
This ability is invaluable because it guarantees that the parties feel free to negotiate in good faith. If any participant acts in bad faith, the other can walk away and take the matter to court. However, abandoning negotiations should not be taken lightly.
The confidentiality restrictions can make subsequent court cases particularly frustrating. You must be prepared to ignore the statements and documents provided during mediation since they are not admissible. You will also need to find new legal counsel, as attorneys representing you during mediation may not continue to represent you after you withdraw. It may still be worthwhile to withdraw should the other party refuse to negotiate, but it should be considered a last resort.
Talk to Expert Mediators About Your Dispute
When you understand the principles of fair mediation, it becomes clear that this ADR method is one of the most effective tools for resolving disputes in California. While it is not the best solution in every scenario, it is an effective and powerful option when parties are willing to collaborate. If you have questions about what to expect during mediation, or if you want assistance mediating a commercial or estate dispute, contact the Law Offices of Denise Eaton May, P.C. We have decades of experience in business law and estate administration in California, and we can help you resolve your disputes while respecting your rights.