Mediation has long been considered the first option in reaching a mutually agreeable settlement for certain civil cases where there is a dispute between two opposing parties. In many cases, such mediation will be suggested by the legal representatives of one party to the other. However, the judiciary (the courts) also have the power to sponsor mediation. Naturally, in such cases, there are a set of rules laid down by the court which the parties have to conform two and it is the understanding of these rules that form the focus of this article.
1) Definition and effect
The first two sections of the rules deal with definition and effect. In the first of these, it will be apparent that mediation is a process where the two parties agree to seek agreement through using the services of a third party, who should be independent and neutral person, known as the mediator. In terms of effect of the rules, it is important to note the two conditions. Firstly, court sponsored mediation does not have a limiting effect on any other action or order given by the courts. Secondly, neither party is allowed to present evidence to the mediator that would be inadmissible in any other legal setting.
2) Action eligible for court sponsored mediation
It is important to recognise that court sponsored mediation will be not considered until one of the parties in the civil case submits a ‘written stipulation’ to mediate on issues between the two parties. The first step in the court sponsored mediation process. Even then, it cannot commence until the court has provided an order transferring the case to mediation.
Mediation of this type cannot be applied to family law cases nor can those cases that are already the subject of mandatory arbitration.
3) Scheduling of mediation
In terms of scheduling, there are strict time tables set for the performance of the mediation process. These include the fact that the first meeting has to be held within six weeks of the initial court order. Furthermore, it is a requirement for both parties to provide the mediator with a brief summary of the case, the issues arising, any offers being sought or demands made as well as full details of the parties involved in the case, including their legal representatives if applicable.
4) Mediator qualification
This section of the rules deals with the requirements for the role of mediator. It does not have a direct impact upon the performance of the two parties apart from the fact that this person is appointed by the court from a list of certified persons.
5) Mediation rules and procedures
The final section deals with the practicalities of the mediation process. In this respect, it contains some important points. Amongst the most important of these is the fact that sanctions and penalties can be imposed upon any party who fails to attend a mediation meeting. Other conditions include reference to the confidentiality of the mediation process and a condition allowing the mediator to meet and consult privately with either of the parties separately during the course of a mediation session.
Finally, if agreement cannot be reached through the mediation processes either party, or indeed the mediator, has the option to terminate the process. If agreement is reached, it needs to be submitted to the court in a written form, with signatures of all of the parties.
Understanding and ensuring that the rules for court sponsored mediation are followed is important to any person or organisation seeking to settle a civil issue through this process. As has been noted, failure to comply can result in a range of penalties including, ultimately, the potential for the other party’s demands being granted. Therefore, it is always advisable for any participant to ensure that they have legal representation of advice if this route for settlement is being pursued.
Kipsap County Superior Court Rules for mediation (KCLCR 87)