How the Jeld-Wen decision affected the CD Mediation Process.

How the Jeld-Wen decision affected the CD Mediation Process.

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JUDICIAL COUNCIL AUTHORITY AND THE PROPOSED AMENDMENT TO CALIFORNIA RULES OF COURT, RULE 3.1380

I. Introduction:   To the relief of some and the chagrin of others, last year’s Jeld-Wen decision dealt a blow to the mediation industry by prohibiting courts from ordering parties to attend and pay for private mediation. The Jeld-Wen court clearly articulated the definition of mediation as follows:

Mediation is defined as a “process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.” [Citations omitted.] During this process, a neutral third party with no decisionmaking power intervenes in the dispute to help the litigants voluntarily reach their own agreement.  (Jeld-Wen, supra at 540.)

The Court of Appeal found that ordering parties to mediation is contrary to the voluntary essence of mediation. Accordingly, the Court held that trial courts “lack authority to force a party to attend and pay for mediation over the party’s objection because such an order conflicts with the statutory scheme pertaining to mediation.” (Id. at 543.)

Since Jeld-Wen, parties and courts have attempted to use the mandatory settlement conference procedure as a means of circumventing the Jeld-Wen decision’s ban on court ordered private mediation.  Historically, mandatory settlement conferences were conducted exclusively by the court, at the expense of the county. However, courts now attempt to refer cases to privately compensated referees to conduct mandatory settlement conferences at the expense of the parties. One district Court of Appeal previously held that a court is not prohibited from appointing a referee under Code of Civil Procedure (“CCP”) Section 6394 to conduct a mandatory settlement conference in a complex case, despite the fact that the express terms of the statute confer no such authority on the courts.  This Court of Appeal opinion, and recent proposals to adopt its holding in the California Rules of Court, are discussed at length below.

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