1. What does “ADR” stand for?
ADR stands for Alternative Dispute Resolution, a term used to describe a variety of methods for resolving a dispute outside of a traditional courtroom setting. ADR methods include mediation, binding and non-binding arbitration, settlement conferences, etc.
2. What is mediation?
Mediation is a voluntary process where parties to a lawsuit sit down with an impartial and neutral third party, called a mediator, who will attempt to help the parties negotiate a resolution to their dispute, as opposed to having a judge make the decision for them.
3. How is Mediation different from a Trial?
In mediation, the parties are able to control the outcome of their case by reaching an agreement with the other side, which may include things like a payment plan or a move-out date.
After a trial, the judge decides who wins and who loses the case. Any monies awarded to a party would be due in 30 days or collections efforts may begin. A Writ of Possession would issue immediately. A judge will not give anyone a payment plan or arrange a move-out date.
4. Why should I use mediation to resolve my dispute?
5. What does it cost?
IFHMB’s in-court mediation services are provided pursuant to a contract with the San Bernardino County Superior Court System and are, therefore, provided free of charge to parties in cases that are sent to mediation by the courts of San Bernardino County.
6. How does our case get assigned to Mediation?
In Unlawful Detainer cases, if both parties appear in court for their trial and neither party is represented by an attorney, the court will assign the case to mediation before conducting a trial, if necessary.
In Small Claims cases, if both parties appear in court for their trial, the court will assign the case to mediation before conducting a trial, if necessary.
7. How long will the mediation last?
Mediation will last as long as needed in order to give the parties a full and fair opportunity to resolve their case. That being said, the typical mediation lasts 15-30 minutes.
8. Where and when do Mediations take place?
If your case is assigned to mediation by the court, the mediation will be conducted at the courthouse the same day your trial is scheduled for.
9. Does Mediation work?
While we cannot guarantee that we will be able to resolve your dispute, historically, our mediators successfully resolve around 70% of the disputes they mediate.
10. Why should we use Mediation if we have already tried to negotiate between ourselves and were unable to settle or agree?
A mediator is a neutral and impartial third party who is trained to assist parties by facilitating a settlement between them. A mediator can listen to each side’s position and help them understand the other side’s position, which can help lead to a settlement. Historically, our mediators successfully resolve around 70% of the disputes they mediate.
11. What is the difference between a Mediator and a Judge?
A mediator does not who decides who wins and who loses a case like a judge does. Instead, a mediator works with the parties to attempt to work out a resolution that allows both sides to “win” to some extent. The mediator has more flexibility to assist the parties to craft a resolution tailored to meet the needs of the parties.
12. What are the Mediator’s qualifications?
While the background of each mediator is different, each of IFHMB’s mediators go through a vigorous training program, including classroom training and practical experience working with an experienced mediation trainer prior to mediating cases on their own. They also receive continuing training each year that they serve as a mediator.
Questions About The Process
13. What types of cases can be mediated?
Most every type of dispute can be mediated and may be resolved by mediation. So long as the parties are willing to make a good faith effort to resolve their dispute, mediation should be beneficial for them, whether an agreement is reached or not.
14. Are there some cases that shouldn’t be mediated?
Mediation would be inappropriate for cases where one party does not feel free to express their wishes or desires based on a potential threat for physical violence or intimidation by the other party. While court disputes can be tense, mediation will not be effective if one party fears the other.
15. What are the rules in Mediation?
The parties should treat each other with respect. The parties should try not to argue with each other but direct their comments to the mediator, and try to avoid interrupting each other. Rather than jumping in while the other party is speaking, make yourself a note to remind you what you want to say when it’s your turn again.
16. What are the stages of Mediation?
After the case has been assigned for mediation by the court, the parties will proceed to the hallway where the mediator will give them instructions about the mediation process. Once the mediation begins, the mediator will make an opening statement, each party will then have the opportunity to present their side of the case, and then the mediator will facilitate a resolution of the dispute.
17. What if I don’t want to participate in Mediation?
Mediation is voluntary and no one can force you to settle your case and waive your right to a trial if you don’t want to. However, given the high success rate of mediations, the courts strongly encourage the parties to make a good-faith attempt to resolve their case in mediation prior to trial. Some courts require mediation prior to trial.
18. Why would I give the other side a chance to hear my side of the case prior to trial?
Unlike on TV where the defense lawyer pulls out the “magic” piece of evidence that no one knew about that wins the case for his client, there are not allowed to be any surprises in the courtroom. This means that any documents, pictures, text messages, items or exhibits that you plan on showing the judge must be shown to the other side first, and anything you want to argue before the judge has to be in your complaint or your answer (depending on which side of the case you are on). Therefore, the other side should already have a pretty good idea of what you are going to say prior to mediation.
19. I don’t want everyone knowing my business, is Mediation confidential?
If you have specific questions about the scope of confidentiality in mediations, you should consult an attorney. However, generally speaking, the rules provide that mediation proceedings are confidential and that means that any documents or communications made during the course of the mediation, including those made in preparation for the mediation are protected from discovery or compelled disclosure except under limited circumstances, and only with a court order. It also means that the mediator cannot be called as a witness at your trial to testify about settlement discussions at the mediation.
20. Do I have to show the other side my documents/evidence?
Yes. One of the benefits of mediation, even if you are unable to reach an agreement, is that mediation can help prepare you for your trial. One of the things that is required before your trial is doing what is called “discovery.” This means that anything you bring to court to show to the judge to prove your case, you have to show to the other side first. This includes showing them any documents, such as contracts, invoices, or receipts; pictures; text messages; items or exhibits; or anything else that you brought to show to the judge. If you haven’t shown the evidence to the other side first, the judge may refuse to consider it. The mediator can assist the parties in completing the discovery process.
21. Must we reach an agreement in Mediation?
No. No one can force you to settle your case and waive your right to a trial if you don’t want to. While we would encourage you to engage in the mediation process in good-faith and make an honest effort to resolve the issues underlying your dispute, the mediator does not have the authority or the power to impose a settlement on the parties, nor is the mediator a judge empowered to decide who wins and who loses.
22. Do I need an attorney?
The parties are encouraged to seek any advice or counsel, including legal advice, at any point and in any manner they deem appropriate to their situation and the responsibility for doing so remains with the parties. The mediator will not ensure that any settlement that results from any mediation is fair or in the best interests of any party or parties. The mediator’s role is to facilitate a voluntary, informed settlement between the parties, and to ensure a fair procedure, not necessarily to ensure a fair result. You remain responsible for doing what is best for you. If you are unsure what you “ought to do,” you should seek legal advice.
23. Can I bring my friend, sibling, or witnesses to Mediation with me/Can I bring a lawyer with me?
In Unlawful Detainer actions, the parties are allowed to be represented by an attorney, and if you have a lawyer, you can and should bring your attorney to court with you for your trial. If you (or the other party) are represented by an attorney in court, your case will not be sent to mediation.
In Small Claims actions, attorneys are not allowed to represent parties in court.
You should bring a translator, if you need one, and any witnesses to court with you in case mediation is unsuccessful and you have a trial. In addition, you may bring a friend(s), relative(s), attorney, or other person(s) to court with you, and may consult with them in the hallway about the mediation or your trial, but they will not be able to attend the mediation session: only the parties to the dispute and third parties necessary to the mediation, such as translators, are allowed to attend the mediation. However, anyone you chose to bring will be able to be in the courtroom and observe your trial, and translators and witnesses will be able to participate in the trial.
24. Can’t you just tell the other side that they’re wrong and to give me what I want?
No. The mediator does not have the authority or the power to impose a settlement on the parties, and the mediator is not a judge, and therefore, cannot decide who wins and who loses.
25. Are mediations conducted in English or Spanish?
Mediations are conducted in English. If you are not comfortable conducting the mediation (or your trial) in English, you should bring someone to court with you to translate for you. It does not have to be a professional translator. You can bring a friend, a relative, or a spouse to translate for you. All they have to be willing to do is to promise to accurately translate from your native language to English and from English to your native language for you and then do so at your mediation and trial. The court will not provide a translator for you. If you do not bring a translator with you, the mediation cannot be conducted. You can ask the court for a continuance to allow you to return with a translator to translate for you at your trial, but this will be at the discretion of the judge, and he or she may not allow you to continue. In which case, you could lose your case if you do not bring a translator and cannot participate in your trial in English.
26. What should I bring with me to the mediation? Should I bring witnesses?
Because your mediation will be conducted on your trial date and you will have a trial that day if you are unsuccessful in resolving the case in mediation, you should come to court prepared for trial. This means that you should bring any documents, including contracts, receipts, invoices, cancelled checks, etc.; pictures; text messages; items; or exhibits with you that you plan to show the judge to support your case. You should also bring any witnesses, and if necessary, a translator, with you to court. If your case is resolved in mediation, you will not need your witnesses, but it is better to have them available should you need them.
Questions About the Agreement
27. What happens if we settle our case? Will I still need to see the judge?
If you reach an agreement to resolve the case, the mediator will assist you in drafting an agreement that will become an order of the court, which means that it will be enforceable by both parties. In order for the agreement to become the order of the court, the judge must sign it. Before he or she does that, the judge will call you forward and make sure you understand the agreement because once signed, the agreement cannot be changed and it cannot be appealed. If you are unsure about what you should do, or you believe you may change your mind later, you should think twice before signing the agreement.
28. What happens if I don’t like the other party’s offer?/ How do I make sure the settlement is fair?
Don’t settle for their offer if you don’t like it or can’t live up to it. Instead, you may propose a counter-offer for them to accept or reject. The mediator will do their best to ensure a fair mediation process where each party is treated with respect, given the opportunity to present their side, and has the opportunity to enter into an informed, voluntary resolution of their case. However, the mediator cannot, and will not, ensure that any agreement reached during mediation is “fair.” That is your responsibility, as you are in the best position to know what is best for you. If you are unsure what you “ought to do,” you should seek legal advice.
29. Is a mediated agreement enforceable/What if the other party breaks the agreement reached in Mediation?
Because the mediation is conducted instead of a trial, any agreement resulting from mediation becomes an order of the court and would be enforceable by either party. Most agreements resulting from mediation take the form of stipulated judgments, which mean that they can typically be enforced like any other judgment if they are violated.
What Happens after Mediation
30. What happens if we don’t settle our case in mediation?
If mediation is unsuccessful in resolving your dispute, your trial will be conducted the same day but you’ll be better prepared for trial because of the mediation.
31. Can the Mediator be a witness at my trial?
No. Since what is discussed in the mediation room is confidential, there wouldn’t be anything for the mediator to testify about.
32. Can the Mediator talk to the judge for me?
No. The mediator is a neutral third party who does not represent either party. Therefore, it would be inappropriate for the mediator to speak to the judge on behalf of either party.
33. Can I appeal the outcome of my Mediation if I change my mind?
No. If you reach an agreement in mediation, it will become an order of the court that both parties are required to comply with. The agreement cannot be changed and it cannot be appealed. If you are unsure about what you should do, or you believe you may change your mind later, you should think twice before signing the agreement.