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Steve Kesten is a Harvard trained mediator that offers private mediation services to persons involved in a variety disputes. Steve has mediated marital, business, employment and personal injury disputes since 1991. In addition to holding a law degree, Steve also holds a graduate degree in clinical psychology. His training in both law and psychology make him an ideal person to help resolve your dispute. Steve Kesten is also working to make early mediation a part of our legal process because it will save all concerned time, money and the emotional drain of litigation. The Mediation Project is an effort to promote pre-litigation mediation. The litigation process is abusive, expensive and inappropriate for the resolution of many disputes. While litigation may prove to be the only way to resolve some types of conflict, many disputes can be efficiently resolved prior to litigation. Isn’t it time to give mediation a real chance to work before the litigants pay tens of thousand of dollars on attorneys?

THE MEDIATION PROJECT’S EARLY MEDIATION INITIATIVE

© 2007 Steven Kesten

a. The purpose of this legislation is to provide litigants in the Superior Court of the State of California with a mechanism for engaging in voluntary non-binding early mediation as a first step in the litigation process without abrogating the fundamental rights of any party. The intent of the initiative is accomplished by strongly encouraging parties to litigation mediate their claims after filing a court action and service on Defendants is complete but before Defendants or Cross Defendants file an answer, general denial or any other form of responsive pleading to the complaint or cross-complaint and prior to the commencement of statutory discovery. The mechanism for engaging in early mediation shall be as follows:

b. After the commencement of a legal action in the Superior Court of the State of California, Plaintiff(s) or Cross-Complainant(s) must serve defendants or cross defendants, together with the summons and complaint, an offer to engage in mediation with any and all Defendants and Cross Defendants. The offer to mediate shall toll all applicable time limits for all Defendants and Cross Defendants to file an answer, general denial or responsive pleading to the complaint or cross-complaint or otherwise attempt to defeat the action for one hundred and twenty (120) days after service of the notice to mediate on at least one other party. A party’s right to seek a TRO, injunction or other form of immediate relief or court intervention remains unaffected by the language of this statute. The statute is not applicable to unlawful detainer actions.

c. The party receiving a communication from Plaintiff or Cross-Complainant proposing mediation must respond, by verifiable means, to the offer within thirty (30) days after receipt expressly stating a willingness to participate in the proposed mediation or refusal to participate. For good cause shown, the time within which a party is required to respond to an offer to mediate may be extended by any court having jurisdiction over the dispute or the parties can, by mutual written agreement, extend the time to respond to an offer to mediate for up to an additional sixty (60) days.

d. If Plaintiff’s or Cross-Complainant’s offer to mediate is accepted, the mediation involving Plaintiff(s), Cross-Complainant(s) and all named Defendants and Cross Defendants shall take place as early as practical within the one hundred and twenty (120) day tolling period. The one hundred and twenty (120) day tolling period and the time by which Defendant(s) and Cross Defendant(s) must file an answer, general denial or attack on the pleadings may be extended by the court in which the action is filed. If the defendant and/or cross defendant refuses to participate in mediation, the defendant or cross defendant must file an answer, general denial or responsive pleading to the complaint or cross complaint within thirty (30) days after giving notification of their refusal to engage in mediation or sixty (60) days after service of the summons, complaint and offer to mediate, whichever is earlier.

e. Fifteen days prior to the scheduled mediation, each of the parties are to produce to all other parties documents and things relevant to the dispute that are in their possession, custody or control except those items that are subject to a claim of privilege pursuant to California Evidence Code § 1119 et seq. Documents prepared for and in the course of the mediation will be protected under the provisions of Evidence Code §1119 et seq.

f. The mediator shall be selected by mutual agreement of the parties and to the extent feasible the selection shall not impose a monetary burden on any party agreeing to engage in mediation disproportionate to the amount in controversy or a party’s ability to pay the costs of mediation. If a mutually agreeable mediator cannot be selected and retained by the parties to the mediation within sixty (60) days after all parties have responded to an offer to mediate, any party may petition the court by means of an ex parte appearance and shall give notice to all affected parties of that party’s intent to appear in court and seek judicial assistance in a manner consistent with Local Rules of Court, the California Rules of Court and the Code of Civil Procedure. The petitioning party shall submit a written application to the court.

1. Each party shall submit the names of three mediators and shall have the right to strike the name of one mediator proposed by each of the other parties. The presiding judge of the court having jurisdiction over the matter, or any court personnel as may be appointed by the presiding judge, shall select and appoint a mediator from the names of proposed mediators submitted by the parties and designate a location for the mediation and date by which the mediation is to take place. The selection of the mediator shall be by a blind draw.

2. The applicable statutes controlling the time for a Defendant or Cross Defendant to enter an answer, general denial or responsive pleadings shall be tolled until the conclusion of the mediation provided it occurs on or before the date set by the court. Defendants and Cross Defendants shall have ten (10) days after the conclusion of meditation or ten (10) days after the last date to mediate set by the court, whichever is earlier, to file an answer, general denial or responsive pleadings.

g. If a Plaintiff or Cross-Complainant fails to initiate or participate in mediation, or if a Defendant(s) or Cross Defendant(s) refuses to participate in the mediation process that party shall be required to pay the attorney fees and costs of the opposing party(s) in the event a civil action is litigated to judgment and provided the party not participating in or refusing to initiate or engage in mediation fails to prevail in the litigation. If the prevailing party in the court action fails to offer other parties the opportunity to mediate or refuses to mediate when such an offer is made, that party shall not be entitled to recover costs of suit or attorney fees from opposing parties whether or not that party would otherwise be entitled to such recovery by contract or statute.

h. By written signed stipulation between Plaintiff and at least one other opposing party, the litigants can agree that mediation is an inappropriate mechanism for resolving the dispute at the commencement of the action. A stipulation waiving early mediation signed by Plaintiff and at least one other opposing party shall be filed with the court and the time within which a party has to file an answer, general denial or other responsive pleading shall not be thirty days after service of the summons and complaint or cross complaint or ten days after the filing of the stipulation not to engage in mediation, whichever is earlier.