Sorry for the couple-day hiatus, but I was off skiing with my brother before he returns to the Commonwealth of Virginia. Though, honestly, I didn't miss much: The Ninth Circuit published nothing on Thursday and only a couple of cases on Friday, and on Friday the California appellate courts cranked out only a single published opinion. Regardless, I much preferred skiing.
That said, I did enjoy this case, so after watching some playoff football today, I thought I'd at least briefly mention it. It shows a keen understanding by Justice McIntyre of the realities of modern litigation, and is important given the increasing outside references made by California trial courts.
The underlying lawsuit was a complex multiparty construction defect case. Judge Styn wanted to get a lot of the lawsuit out of his court, as well as potentially resolved, so he appointed both an outside discovery referee as well as an mediator/settlement conference neutral, the latter to be paid for by the parties for a maximum of 100 hours at $500/hour. No small piece of change.
One of the defendants, Jen-Weld, objected, arguing that mandatory mediation (and some other stuff) was impermissible. Judge Styn disagreed, and when Jen-Weld refused to participate in the mediation, Judge Styn imposed sanctions and ordered them to attend. At which point Jen-Weld filed a writ.
The Court of Appeal granted the writ and reversed, holding that trial court's don't have authority to order parties in a complex civil action to attend and pay for private mediation. The opinion by Justice McIntyre is short (nine double-spaced pages), to the point, and persuasive. This was also a great vehicle in which to find that mandatory (party-paid) mediation was impermissible, as the costs of the mediation for Jen-Weld would have swamped any alleged liability. Since plaintiff's settlement demand to Jen-Weld was less than $2,800, you can easily see why it would be pretty crazy to make Jen-Weld pay to mediate a case it has probably no intention of paying money to settle and in which its mediation costs would exceed the existing settlement demand.
"While trial courts may try to cajole the parties in complex actions into stipulating to private mediation (see Super. Ct. San Diego County, Local Rules, rule 2.3.7), they 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." This seems right to me. So I thought this one came out the correct way.
P.S. - Not that it made a difference to my assessment, but I did notice -- and was happy to learn -- that both of the attorneys for Jen-Weld were graduates of the University of San Diego School of Law: Jeff Harmeyer and Brett Norris. And as Mr. Norris was a student in my first-year Civil Procedure class at USD, I was especially happy to see him prevail in this civil procedure case. Great job, Brett!
