Mediation is a confidential, non-binding process in which a trained mediator acts as a neutral person who facilitates communication between disputants and assists parties in reaching a mutually acceptable resolution of all or part of their dispute. The mediator is not the decision-maker and does not resolve the dispute -- the parties do. A mediator is often able to more fully explore the parties' underlying interests, needs and priorities. Mediation is a flexible and less formal process that may reduce the time and costs often associated with a formal trial.
Mediation may be particularly effective when family members have a dispute, such as in cases involving estates, trusts, conservatorships and/or guardianships, or when emotions are getting in the way of resolution. An effective mediator can hear the parties and help them communicate with each other in a constructive manner.
Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, mediation may not be a good choice if the parties have a history of abuse or victimization.
The court maintains a Probate Mediator List. Parties are free to use other mediators not included on this list -- many other mediators and organizations offering mediation services have websites or advertise in various publications, including the yellow pages.
If the parties choose a mediator on the court's Probate Mediator List, they will be required to pay the mediator's regular fees for all services unless there is a court order specifying that the mediator's fee would be charged to a Trust or that a mediator on the court's list is to be engaged on a pro bono basis. Hourly rates for mediators on the court's Probate Mediator List range from $200 - $450 and may also include additional fees and/or minimum deposits (please refer to the individual mediator profiles contained in the Probate Mediator List for more specific fee information). The market rates for private mediators can range from $200-$1,000 per hour and may also include additional fees and costs.
All parties, their counsel and persons with full authority to settle the case must personally attend the mediation, unless excused by the court for good cause. If consent to settle is required for any reason, the party with the consent authority must also be personally present at the mediation.
The mediator is an impartial neutral intermediary whose role is to help the participants reach a settlement. The mediator will not impose a settlement, but will assist the parties in exploring settlement options. Generally, the mediator does not communicate with the court.
Except as otherwise provided by the California Evidence Code or California law, all communications, negotiations, or settlement discussions in the course of a mediation or mediation consultation are confidential and are not admissible or subject to discovery.
You and your attorney should be prepared to discuss all relevant issues in your case. Before the mediation session, you and your attorney should discuss the mediation process and understand it is confidential and non-binding. You should be prepared to state your position and to listen carefully to the other side. Persuasive and forceful communication is permitted, but civility and mutual respect is vital. Hostile or argumentative tactics are likely to cause positions to become entrenched and thus discourage progress. Some mediators also require pre-mediation briefs.