Do local rules empower superior courts to order cases to mediation?

Mediation can be a superbly cost-effective means of resolving civil cases. In view of their existing budgetary constraints and limited resources, superior courts are incentivized to do everything in their power to get every case into mediation or some equally effective form of ADR. But do local rules empower superior courts to "order" cases to mediation?

Government Code Section 68070 authorizes each California court (including superior courts) to make local rules for "its own government" and the "government of its officers." However, such rules may not be "inconsistent with law." This is interpreted to mean that "[l]ocal rules are valid and have the force and effect of law only if they are not inconsistent with higher authority, such as statutes, state rules of court, and case law." Thatcher v. Lucky Stores, Inc., 79 Cal. App. 4th 1021, 1084-85 (2000).

California superior courts regularly adopt local rules that address the prospect of the parties' participation in ADR prior to trial. For example, Alameda County Superior Court Rule 3.700 provides that the court "may refer cases to an appropriate form of alternative dispute resolution (ADR) before they are set for trial." Contra Costa County Superior Court Local Rule 3.200(a) states that, "Judges in the Contra Costa County Superior Court encourage parties involved in lawsuits to use ADR to resolve disputes without trial." Contra Costa Local Rule 3.200(d) states that, "Participation in any of the Court's ADR programs is strong encouraged and voluntary unless otherwise provided by law, Judge or Local Rule." San Francisco County Superior Court Local Rule 4.0 provides that, "Every long cause, non-criminal, non-juvenile case should participate in voluntary mediation, arbitration, neutral evaluation, an early settlement conference or other appropriate alternative dispute resolution process prior to trial." And Santa Clara County Superior Court Local Rule 2.A. states that, "the Court will refer all general civil cases to an appropriate form of ADR before they are set for trial."

The ultimate answer to whether a superior court can order mediation is provided by Jeld-Wen Inc. v. Superior Court, 146 Cal. App. 4th 536 (2007). In Jeld-Wen, the San Diego County Superior Court was confronted with a complex construction defect case in which Jeld-Wen was an uninsured cross-defendant in a dispute involving over $500,000 in alleged repair costs. As a result, the trial court entered an order appointing a mediator along with a requirement that all parties were to participate in mediation that included court-imposed deadlines and cost sharing. After Jeld Wen's objection to the mediation was overruled, the company refused to attend the mediation sessions and the court issued sanctions. Jeld-Wen then sought to set aside trial court's orders.

The Court of Appeal noted that Code of Civil Procedure Section 1775 et seq. allow a judge to order mandatory mediation paid for by the Judicial Council where the amount in controversy does not exceed $50,000 for each plaintiff, irrespective of defenses and other questions of liability. However, other types of claims seeking relief in excess of the statutory $50,000 threshold cannot be ordered to mediation, unless all parties to the dispute agree to mediate. In complex litigation cases, trial courts may appoint a referee or a mandatory settlement conference judge in an effort to resolve various issues, including exploring the potential for a pre-trial settlement.

While the Court of Appeal in Jeld-Wen affirmed the inherent power of the trial judge to control the proceedings before the court, it noted that the court's orders may not conflict with settled statutory or common law. Because the trial court's case management order in Jeld-Wen required mandatory mediation, the appellate court found it was not consistent with the statutory scheme and it was also contrary to the understood voluntary nature of mediation. According to the Jeld-Wen opinion, "While trial courts may try to cajole the parties in complex actions into stipulating to private mediation, the parties cannot be forced or coerced over the threat of sanctions into attending and paying for private mediation as this is antithetical to the entire concept of mediation."

Therefore, superior courts can order mandatory mediation depending upon the amount in controversy, the complexity of the case, and whether or not the court is going to pay the mediator's fee. The question of whether an attorney should resist a trial court's efforts to get a case to mediation still remains.