U.S. District Court for the Northern District of California
6-10. Attendance at Session (a) Parties. All named parties and their counsel are required to attend the Mediation in person unless excused under paragraph (d) below. This requirement reflects the Court’s view that the principal values of Mediation include affording litigants opportunities to articulate directly to the other parties and a neutral their positions and interests and to hear, first hand, their opponent’s version of the matters in dispute.
Mediation also enables parties to search directly with their opponents for mutually agreeable solutions. (1) Corporation or Other Non-Governmental Entity. A party other than a natural person (e.g., a corporation or an association) satisfies this attendance requirement if represented by a person (other than outside counsel) who has final authority to settle and who is knowledgeable about the facts of the case. If final authority to settle is vested only in a governing board, claims committee, or equivalent body and cannot be delegated to a representative, an entity must disclose (in writing or electronically) this fact to all other parties and the mediator at least 14 days before the Mediation session will occur.
This required disclosure must identify the board, body, or persons in whom final settlement authority is vested. In this instance the party must send the person (in addition to counsel of record) who has, to the greatest extent feasible, authority to recommend a settlement, and who is knowledgeable about the facts of the case, the entity’s position, and the procedures and policies under which the entity decides whether to accept proposed settlements. (2) Government Entity. A unit or agency of government satisfies this attendance requirement if represented by a person (in addition to counsel of record) who has, to the greatest extent feasible, authority to settle, and who is knowledgeable about the facts of the case, the governmental unit’s position, and the procedures and policies under which the governmental unit decides whether to accept proposed settlements.
If the action is brought by the government on behalf of one or more individuals, at least one such individual also must attend. (b) Counsel. Each party must be accompanied at the Mediation by the lawyer who will be primarily responsible for handling the trial of the matter. (c) Insurers.
Insurer representatives are required to attend in person unless excused under paragraph (d) below, if they have accepted coverage, or the duty to defend, even if subject to a reservation of rights.
Local Rules – Effective May 1, 2018 ADR-20 (d) Request to be Excused. A person who is required to attend a Mediation may be excused from attending in person only after a showing that personal attendance would impose an extraordinary or otherwise unjustifiable hardship. A person seeking to be excused must submit, no fewer than 14 days before the date set for the Mediation, a letter to the ADR Magistrate Judge in care of the ADR Unit at the address listed in ADR L.R. 2-1(c), or emailed to [email protected], simultaneously copying all counsel and the mediator. The letter must: (1) Set forth all considerations that support the request; (2) State realistically the amount in controversy in the case; (3) (4) (5) (6) Identify by name and title or status the individual(s) seeking to be excused; Identify by name and title or status all those persons who will attend; Identify by name and title or status the person(s) with decision-making authority, and Indicate whether the other party or parties and the mediator join in or object to the request.
The request may not be filed or disclosed to the assigned Judge. (e) Opposing a Request to be Excused or Seeking to Compel Attendance by an Appropriate Party Representative. (1) A party who opposes another party’s request to be excused from attending in person a Mediation session may submit to the ADR Magistrate Judge in care of the ADR Unit at the address listed in ADR L.R. 2-1(c), or emailed to [email protected], within 4 days of receiving a copy of the request, a letter setting forth all grounds for the opposition. Such a letter must be served simultaneously on all other parties and the mediator – and may not be filed or disclosed to the assigned Judge.
(2) A party who alleges that another party will not be represented at a Mediation session by an appropriate representative may submit to the ADR Magistrate Judge, as far in advance of the session as practicable, a letter setting forth the bases for this allegation. Within 4 days of receiving a copy of such a letter, the party so challenged may submit to the ADR Magistrate Judge a responsive letter. Such letters must be sent to the ADR Magistrate Judge in care of the ADR Unit at the address listed in ADR L.R. 2-1(c), or emailed to [email protected] and served simultaneously on all other parties and the mediator – and may not be filed or disclosed to the assigned Judge. (f) Participation by Telephone.
Unless otherwise ordered, a person excused from appearing in person at a Mediation must participate by telephone for the duration of the session or until excused by the neutral. Commentary Ordinarily, a corporation or other entity, including a governmental entity or an insurer, satisfies the attendance requirement by sending a person or persons who can agree to a settlement without the necessity of gaining approval from anyone else. Exceptions to this general practice must be disclosed and addressed in advance of the session.
Local Rules – Effective May 1, 2018 ADR-21 6-11. Procedure at Mediation (a) Procedure. The Mediation shall be informal. Mediators shall have discretion to structure the Mediation so as to maximize the benefits of the process.
(b) Separate Caucuses. The mediator may hold separate, private caucuses with each side or each lawyer or, if the parties agree, with the clients only. The mediator may not disclose communications made during such a caucus to another party or counsel without the consent of the party who made the communication. 6-12.
Confidentiality (a) Confidential Treatment. Except as provided in subdivision (b) of this local rule, this Court, the mediator, all counsel and parties, and any other persons attending the Mediation shall treat as “confidential information” the contents of the written Mediation Statements, anything that was said, any position taken, and any view of the merits of the case expressed by any participant in connection with any Mediation. “Confidential information” shall not be: (1) Disclosed to anyone not involved in the litigation; (2) Disclosed to the assigned Judge or (3) Used for any purpose, including impeachment, in any pending or future proceeding in this Court. (b) Limited Exceptions to Confidentiality.
This rule does not prohibit: (1) Disclosures as may be stipulated by all parties and the mediator; (2) Disclosure of the terms of a fully executed settlement agreement signed during or arising out of the Mediation; (3) Disclosures made in a subsequent confidential ADR or settlement proceeding; (4) A report to or an inquiry by the ADR Magistrate Judge pursuant to ADR L.R. 2-4 regarding a possible violation of the ADR Local Rules; (5) The mediator from discussing the Mediation with the Court’s ADR staff, who must maintain the confidentiality of the Mediation; (6) Any participant or the mediator from responding to an appropriate request for information duly made by persons authorized by the Court to monitor or evaluate the Court’s ADR program in accordance with ADR L.R. 2-6; (7) Disclosures as are otherwise required by law. (c) Confidentiality Agreement. The mediator may ask the parties and all persons attending the Mediation to sign a confidentiality agreement on a form provided by the Court. Commentary Ordinarily, anything that was said in connection with a Mediation is confidential.
See, e.g., Fed. R. Evid. 408; Folb v. Motion Picture Industry Pension & Health Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998); Cal. Evid. Code §§ 703.5 and 1115-28; Simmons v. Ghaderi, 44 Cal.4th 570 (2008); Rojas v. Superior Court, 33 Cal.
4th 407 (2004); Foxgate Homeowner’s Assn. v. Bramalea California, Inc., 26 Cal.4th 1 (2001). The law may provide some limited circumstances in which the need for disclosure outweighs the importance of protecting the confidentiality of a Mediation. E.g., threats of death or substantial bodily injury (see Or. Rev. Stat. § 36.220(6 ; use of Mediation to commit a felony (see Colo.
Rev. Stat. § 13-22-307); right to effective cross examination in a quasi- USDC ADR Local Rules – Effective May 1, 2018 ADR-22 criminal proceeding (see Rinaker v. Superior Court, 62 Cal.App.4th 155 (3d Dist. 1998); lawyer duty to report misconduct (see In re Waller, 573 A.2d 780 (D.C. App. 1990); need to prevent manifest injustice (see Ohio Rev. Code § 2317.023(c)(4); see also Uniform Mediation Act, § 6 (2001). Accordingly, after application of legal tests which are appropriately sensitive to the policies supporting the confidentiality of Mediation proceedings, the Court may consider whether the interest in Mediation confidentiality outweighs the asserted need for disclosure. See amended opinion in Olam v. Congress Mortgage Co., 68 F. Supp.
2d 1110 (N.D. Cal. 1999). Nothing in this commentary is intended to imply that, absent truly exigent circumstances, confidential matters may be disclosed without prior approval by the Court. 6-13.
Follow Up At the close of the Mediation session, the mediator and the parties shall jointly determine whether it would be appropriate to schedule some type of follow up. Such follow up could include, but need not be limited to, written or telephonic reports that the parties might make to one another or to the mediator, exchange of specified kinds of information, or another Mediation session. 6-14. Certification of Session Within 14 days of the close of each Mediation session and on the form Certification of Session provided by the Court, the mediator must report to the ADR Unit: the date the session was held, whether the case settled in whole or in part, and whether any follow up is scheduled.
The ADR Unit will enter this information on the docket.
Local Rules – Effective May 1, 2018 ADR-23 7.
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