The vast majority of mediations are attended by the necessary and appropriate parties, and all concerned engage in good faith efforts to resolve the case. However, there are the infrequent occasions where the mediation process is stalled by either the lack of attendance at the mediation of proper parties, or by what one party may consider as a "bad faith position" taken at the mediation.

These type of situations often result in a request by the aggrieved counsel to the mediator to report the perceived "bad faith" conduct to the court. Although the mediator must inevitably decline this request, it is an understandable one. After all, if counsel has done a thorough job preparing for the mediation, he or she will have spent time preparing a mediation brief and in meeting with the client(s) in preparation for the mediation. In addition, experts may have been communicated with, or even requested to attend. In short, a significant incurrence of fees and costs has occurred in preparing for and attending the failed mediation.

Mediations are voluntary, and stipulations for mediation are generally entered into by the counsel and their clients with certain expectations. It is generally expected that all necessary parties will be present, as well as any necessary insurance company or client representatives whose consent or authority is necessary to resolution of the issues in dispute. Counsel are strenuously advised to include provisions regarding required attendance in these stipulations.

In court-mandated or monitored mediation, the court generally requires the presence of all parties and necessary individuals at to mediation. See California Rules of Court, Rule 1634 and San Luis Obispo County Local Rule of Court, Rule 9.07. In my experience, the Santa Barbara County Superior Court CADRe program and the San Luis Obispo Superior Courts both utilize stipulations and orders which are signed by all counsel, mandating the attendance of parties and any persons necessary to have full authority to resolve the dispute.

So when counsel arrives at a mediation without proper and necessary parties, it is understandable that the other parties and their counsel are upset. Nonetheless, a mediator is precluded from reporting any such failure of the proper parties to attend or deal in good faith to the court, due to the confidentiality provisions of Evidence Code Sections 1115 -1128. To hold otherwise would impinge upon the mediator’s position of neutrality and impartiality, which is essential to the sanctity, as well as the success, of the mediation process. The legislature recognized this priority in enacting Evidence Code Section 1121, which precludes a mediator from providing any report to the court other than one which states whether or not an agreement was reached at mediation, unless all parties expressly agree to the contrary. Evidence Code Section 703.5 also states that a mediator is generally incompetent to testify at any subsequent proceeding.

This position has recently been confirmed by the holding of the Supreme Court in Foxgate Homeowners’ Association, Inc., v. Bramalea California, Inc., et al (July 2001) 26 Cal. 4^th 1, 108 Cal Rptr 2^nd 642, 25 P.3d 1117. In Foxgate, a large construction defect case, the appointed special master pursuant to a Court Management Order, also sat as mediator. He ordered a mediation at which all counsel were ordered to attend with their experts and insurance representatives. When the counsel for the defendant/cross-complainant developer showed up late, without any experts, and took a "no liability" position, the mediation was aborted. The mediator subsequently filed a report with the court advising that the acts of this particular counsel had not complied with the order and had used obstructive bad faith tactics, to the detriment of the mediation process. Ultimately, the Supreme Court held that the trial court could not properly consider the report of the mediator/special master, which supported a request for sanctions.

It must be pointed out that Evidence Code section 1121 does not preclude attorneys from bringing a motion for sanctions, supported by the declaration of counsel and/or the parties, where the parties required to be in attendance do not appear. The motion will simply have to be made without the supporting declaration or report of the mediator.

Where the issue is not attendance, but whether the persons who attended the mediation had the necessary settlement authority or acted in good faith, a motion becomes more problematic. As stated by Lee Jay Berman, a well-known mediator with the American Arbitration Association and former director of the Santa Barbara CADRe program, "There is a legitimate question when it comes to ‘settlement authority’ and ‘good faith’. It is not my job [as mediator] to say that if XYZ Insurance Company puts $5,000.00 on a case and the plaintiff wants $500,000.00, that one of the parties (or both) are acting in bad faith. It may reflect their honest opinions of the case or their ability to prevail or defend the case at trial. The mediation process will lose all effectiveness if it tries to deny a party that right."

Not only is the mediator precluded from being involved in such a dispute over the "bad faith" efforts or positions of a party at mediation, but so are counsel in most situations. Evidence Code section 1119 in essence prohibits the admission into evidence of anything said or done during the course of a mediation. Since arguably the only way it can be determined whether a participant had the necessary settlement authority or was acting in good or bad faith at a mediation is to base it upon their statements, position and conduct at the mediation, it seems unlikely that such a motion would have much potential for success.

With proper advanced planning, all of these issues can be addressed. First, counsel should enter into a signed agreement or stipulation for mediation that mandates the presence of the necessary persons at the mediation. Preferably, these persons should be identified in advance and listed by name and/or position.

When persons are to be made available telephonically, then this should be addressed in advance, in the stipulation or order, and not dropped like a bomb for the first time at the mediation hearing. A clause in the stipulation stating that the failure of one of the necessary parties to appear will result in a breach of the stipulation, and providing a right to seek fees and costs incurred by the other parties, will provide a contractual basis for relief, in addition to other remedies.

Finally, when the mediation is agreed to at a court hearing, make sure that a stipulation is signed at court by all, and that the court orders the proper parties to attend. Notice of this ruling should be given since case management conferences and status conferences do not always have court reporters present.