The Process
What is Mediation?
Mediation is a voluntary, confidential and collaborative process in which the parties attempt to reach a mutually acceptable agreement through the assistance of a neutral and impartial mediator. Mediation avoids the expense, stress and uncertainty of litigation, and allows the parties to reach an agreement that best meets their needs. Mr. Menard offers his mediation services to parties in litigated cases, and in pre-litigation disputes.
Confidentiality
The mediation process is confidential pursuant to various state and federal statutes. (See California Evidence Code sections 703.5, 1115-1129, 1152, California Code of Civil Procedure section 1775.10, Federal Rule of Evidence 408, and California Rule of Court 3.854.) The mediation participants will be required to sign an agreement prior to or at the mediation acknowledging these confidentiality rules.
In order to promote full disclosure, these statutes provide in part that written or oral statements made by any participant during the mediation may not be used for any purpose in any legal proceeding. The mediator cannot be called to testify by any party, and cannot testify voluntarily on behalf of any party. Written settlement agreements entered into during mediation may, however, be admissible in Court under certain circumstances.
In addition, effective January 1, 2019, state law requires attorneys who represent a client in a mediation to timely provide a written disclosure concerning confidentiality restrictions set forth in Evidence Code section 1119, the implications of those restrictions, and to obtain the client’s written acknowledgement that he or she has read and understands the restrictions. (See California Evidence Code sections 1122, 1129.) These statutes have a number of specific requirements, which should be reviewed.
Attendance at the Mediation
A successful mediation requires the presence of final decision makers with full settlement authority. Arrangements must be made to have such individuals attend the mediation in person. If a person with final settlement authority is unable or unwilling to appear in person at the mediation, Mr. Menard should be advised in advance of the mediation and he will determine whether the mediation should proceed. Mr. Menard may allow the participation of a party by telephone under limited circumstances and conditions.
Mediation Statements
Mr. Menard requests mediation statements from the parties seven days prior to the mediation. Statements should be sent to Mr. Menard by electronic mail. Statements should not exceed ten pages in length, and should include a summary of the relevant factual and legal issues, the material case and/or statutory authority, the claimed damages, any prior settlement negotiations, and the party’s interests and priorities regarding settlement. The parties may submit relevant documents with their statement if not voluminous. Statements should be exchanged between the parties prior to the mediation. Exchanging statements makes the mediation a more productive and efficient process. Any information that is sensitive in nature may be sent to Mr. Menard in a separate writing marked “confidential.”
Mediation Style
Mr. Menard is flexible during the mediation process, adapting to the particular circumstances involved in each matter including the nature of the case, and the personalities and desires of the parties. Generally, Mr. Menard will caucus with each side privately throughout the mediation in an attempt to resolve the dispute. During this process, Mr. Menard will explore the material issues of the case and each party’s interests. Given his extensive legal background, Mr. Menard may offer his view of the strengths and weaknesses of each party’s position. He will use his interpersonal and negotiation skills to problem solve with the parties. If the parties reach a settlement, it will be memorialized in a written agreement signed by the parties at the mediation.
Pre-Mediation Conferences
Depending on the particular case, Mr. Menard may conduct an individual or joint pre-mediation telephonic conference with counsel or the parties if unrepresented. The purpose of this conference is to discuss scheduling, the nature of the case, the status of any discovery, the intended participants at the mediation, and any particular interests or issues that should be addressed prior to the mediation.
Settlement
Mr. Menard requests that the parties and counsel make a good faith effort to settle their dispute and requests a commitment that they do so at the beginning of the mediation. Should the parties reach a settlement, it will be memorialized in an enforceable written agreement signed by the parties at the conclusion of the mediation. If a settlement is not reached, Mr. Menard will explore whether a potential resolution with the parties is possible after the mediation session. If the parties express a willingness to keep the settlement dialogue open, Mr. Menard will continue to work with the parties toward a resolution of the dispute.
Fee Policy
Mr. Menard’s mediation services are offered on either a half or full-day basis. Please contact Mr. Menard for his current rates.
The half-day rate includes four hours of mediation time; the full-day rate includes eight hours of mediation time. The half and full-day rates include all pre-mediation communications with the parties, two hours of preparation time, and local travel in Los Angeles or Orange Counties. Mr. Menard charges his standard hourly rate for any additional mediation or preparation time, and non-local travel and related travel expenses.
Unless modified by the parties’ prior written agreement, each party and counsel are jointly and severally responsible for their pro-rata share of all mediation fees.
The initial mediation fee is due upon confirmation of a reserved hearing date. Payment is required to preserve the hearing date. Fees for any additional time and expenses are due at the conclusion of the mediation session or upon the subsequent submission of an Invoice, at Mr. Menard’s discretion.
Fees are non-refundable if a mediation date is cancelled within ten days of the scheduled date unless Mr. Menard schedules another mediation for that date. If the mediation is cancelled beyond ten days, the deposited fees are returned less a $250 per party administrative cancellation fee.