Expert: Timmy Chou - 1/27/2012

Question
I have a friend in California who sued a nursing home for wrongful death of their spouse.  She claims the nursing home and their attorney has agreed to mediation. She was instructed by a judge to get an attorney and a mediator.  I thought a mediator was retained by both parties?  I thought the mediation fee would be split by both parties? I was also told that if no agreement could be reached, the judge would decide on a settlement after 90 days?  Does this sound correct under CA law?

Answer
Hi Allan,

I'm not an attorney nor am I familiar with CA law or the particulars of the specific court procedures.  Here is what I can add.  Typically courts will order mediation automatically or if the judge feels like the case merits it.  Nearly 80% of civil cases settle before trial so it is usually not IF you will settle but when.  Typically mediation costs are split 50-50 as the system presumes that the parties are negotiating in good faith and want to make sure there is some cost to the process.  The court-ordered mediations are usually not optional, but parties are not required to agree and abide by any result, and are free to continue to litigate if they choose.  If a mediation result is rejected by ether party, then the lawsuit resumes as usual with no penalty (except maybe an annoyed judge).  Depending on the filing, motions and court the eventual lawsuit may be before a judge or before a jury.  However typically once the lawsuit commences any mediation result or activity is ignored for litigation purposes.  

Hopefully these perspectives are useful!

Good luck.