Mediation Consumer Case Information
Referees for Discovery and Accounting
Neutral Fact Finding
Mediation is a process in which an impartial third party assists the parties to resolve a dispute and obtain a mutually acceptable settlement. The mediator promotes communication among the parties, helping them to identify their interests in the dispute and frame the real issues involved. The mediator does not impose a decision on the parties. Instead, the parties retain total control over the outcome of the negotiations. The final settlement reflects the combined efforts and creativity of the parties, their counsel, and the mediator.
Mediators employ different styles to resolve a particular dispute. Facilitative mediation enables the parties to maintain complete control over the structure of the mediation process. The mediator guides the parties and offers options to promote communication.
Evaluative mediation occurs where the mediator evaluates the factual and legal issues of the dispute, to advise the parties of the possible outcome of the dispute. The mediator will use any one or more styles and any guidelines agreed upon by the parties to settle a dispute.
In arbitration, the arbitrator hears evidence and arguments from the parties and makes a written decision or "award." The award may be binding or nonbinding, depending upon the agreement of the parties. The arbitration process can be flexible, and can be as formal or informal as the parties agree. This process enables the parties to select an arbitrator with the particular expertise in the subject matter in dispute. The process is usually less protracted and time consuming than allowing the case to proceed to trial in the court system.
A settlement conference is a form of mediation, usually conducted before a retired judge or other experienced litigator. The parties present the factual and legal issues to the neutral. The neutral takes an active role to attempt to settle the case, and will express an advisory evaluation as to the merits and settlement value of the case. This enables the parties to obtain an early indication of the strengths and weaknesses of their respective positions early in the dispute resolution process. The settlement conference is nonbinding.
A mini-trial is a process similar to evaluative mediation. In this process, the neutral sits on a panel, along with representatives from each of the parties. The party representatives have full settlement authority. The neutral will moderate the hearing and offer an advisory evaluation, if necessary. The neutral works with the party representatives to attempt to facilitate a settlement. The goal is to treat the dispute as a business problem, to be resolved through a practical business solution, instead of as a matter for litigation.
California Code of Civil Procedure Sections 638 and 639 enable the parties (or the court) to select a neutral referee to determine issues in the case, or certain specified issues, such as discovery and accounting disputes. The referee conducts a hearing, where the parties present their evidence and argument. After the hearing, the referee submits the appropriate findings and decision to the court. The trial judge usually adopts the referee’s decision. Objections to a referee’s findings may be filed by the parties to be resolved by the court.
The reference is voluntary when the parties agree that a referee is necessary under Code of Civil Procedure Section 638. The reference is involuntary when the court independently determines that a referee is necessary under Code of Civil Procedure Section 639. This procedure allows the parties to efficiently resolve disputes that the trial court may otherwise be too burdened to resolve in the normal course of its calendar.
A neutral fact finder is often used to investigate a dispute involving technical, economic or other matters which may involve expert opinion. The fact finder interviews the parties, analyzes information and data presented by the parties, and conducts an independent investigation into the disputed issues. The fact finder renders an opinion that may greatly increase the chance for settlement. This process can be used as a stand-alone procedure, or in combination with another dispute resolution process.
In a private trial, a neutral selected by the parties renders a decision in the case. The judgment issued by the neutral may be appealed. The case pending in the public court is stayed until the neutral issues a decision. The judgment is then entered by the court as if the trial took place in court. This process enables the parties to select a neutral with the particular expertise required to render a verdict to resolve the matter. The parties also control the time frame for resolving their dispute.
In a med-arb, the parties agree in advance to begin the resolution process with a mediation, and then shift to an arbitration if the case does not settle in mediation. The neutral facilitates settlement negotiations, and also makes binding decisions on any issues that may hinder settlement. Ultimately, the matter is resolved by the parties with a negotiated settlement, or by an award from the neutral.