LEARN THE ADR PROCESS FOR FRESNO COUNTY SUPERIOR COURT
- M. Troy Hazelton
- Aug 21, 2018
- 7 min read
A Fresno Mediator’s Observations On Effective Negotiations Skills and Techniques In A Mediation: The ADR Steps in Fresno County Superior Court.
Fresno County Superior Court provides the parties with three opportunities to settle your case before the judge swears in your jury.
Mandated ADR (private mediation)
Mandatory Settlement Conference
Trial Readiness Hearing (maybe)
Learn these procedures, and you will have several opportunities to settle that one nightmare case you desperately want off your desk.
MANDATED ADR-- PRIVATE MEDIATION/ARBITRATION
By the first Case Management Conference, the Parties are required to start planning a private mediation or arbitration. Fresno County Local Rule 2.1.9 (A) states:
All parties are required to appear at the Case Management Conference. The person attending the conference shall have sufficient understanding of the case and sufficient a authority to make decisions and agreements as necessary, including agreements regarding submission of the case to ADR (such as choosing the form of ADR and choosing an arbitrator or mediator),...
All parties must engage in some form of Alternative Dispute Resolution (ADR), such as mediation. This ADR must be completed prior to the Mandatory Settlement Conference. Failure to do so may result in the court imposing sanctions, unless excused by the court upon a timely showing of good cause by written declaration.
If all named parties to the complaint have filed an appearance, the parties shall confer prior to the CMC and file an Alternative Dispute Resolution Stipulation, on a form designated by the court, at least ten (10) court days prior to the CMC. Parties who fail to file the ADR Stipulation may subject to sanctions at an OSC hearing set by the court.
In other words, Ten (10) days before the initial the CMC the parties must meet and confer and agree to an ADR process (usually a mediation), agree to a mediator, and submit the ADR Stipulation form (You can download here).
1. Fresno's Mediator Panel
Fresno County Superior Court provides an alphabetical list of active mediators in Fresno County to assist in your selection. (I have to say I am partial to number 26 on this list)
The parties have until 10 days before the Mandatory Settlement Conference to mediate the case and file an Alternative Dispute Resolution report to the Court advising they attempted mediation/arbitration but were unsuccessful or file a Notice of Settlement.
2. Failure to Submit ADR Stipulation
If the parties do not submit the ADR Stipulation by the time of the Case Management Conference, the Court will set an Order to Show Cause requiring the parties to appear and explain why the case does not warrant ADR for early resolution. The Court usually will take this hearing off calendar if the parties submit the ADR stipulation (albeit late) before the Order to Show Cause hearing. So, even though you may not have submitted the ADR stipulation prior to the Case Management Conference, ensure you submit one as soon as possible to skip a personal appearance hearing explaining why you didn't follow local rules!
MANDATORY SETTLEMENT CONFERENCE
In Fresno County Superior Court, the clerk will set a Mandatory Settlement Conference approximately 10-14 days before trial. Fresno County Superior Court Local Rule No. 2.5.2 requires the parties to meet and confer before the Mandatory Settlement Conference, which is satisfied either by face-to-face discussions or telephonic communications; "communication by writing will not suffice."
The courts want the parties to talk. Plain and simple. If you talk, you have a better chance of settling or at least narrowing the issues.
As an interesting twist, Fresno County Superior Court will only give a Mandatory Settlement Conference if you attempted a mediation earlier. Specifically, Fresno County Superior Court Local Rule No 2.5.1 (F) states the Court will give the parties a Mandatory Settlement Conference only if they comply with the Standing Order No. 07-0628, requiring the completion of ADR.
So, make sure you mediate and do not rely on settling at the Mandatory Settlement Conference. Usually, the court will contact you if you have not advised you had mediated the matter. If you haven't mediated, the Court will require you to do so before the MSC. As a result, you can find yourself crammed on finding a mediator on such notice. Best advice: Mediate early. Mediate often.
1. Practical Advice For The
Mandatory Settlement Conference
Assuming you cannot settle at your mediation, you still have a chance of settling at the Mandatory Settlement Conference. Here a few steps to take to assist in your journey.
First and foremost, check with the ADR department at Fresno County Superior Court to confirm the Mandatory Settlement Conference and advise of any special issues with your case, such as, numerous parties, accommodations needed, briefing questions, etc. You can reach the ADR Specialists at the Court House (See here for contact information of the Fresno County Superior Court Alternative Dispute Administrators)
Second, make sure you submit your MSC brief no later than five (5) days prior to the settlement conference. Local Rule 2.5.6, lays out the brief's requirements:
B. In addition to the subject matter required by Rule 3.1380(c) of the California Rules of Court, the settlement conference statement shall contain:
1. The names of parties and their attorneys.
2. Whether or not an insurance carrier employee is required to be personally present, and, if so, the identity of the carrier.
3. Whether or not a board, council or other committee must approve of settlement, and, if so, the identity of that body.
4. Whether or not the consent of a person who is not a named party is necessary to achieve settlement, and, if so, the identity of that person.
5. The fact and results of compliance with Rule 2.5.2 and the results of prior mediation or arbitration.
6. Prior settlement negotiations.
7. Code of Civil Procedure § 998 demands.
8. Whether or not further discover contemplated, and, if so, a description of it.
Third (and as of the date of this post) The Mandatory Settlement Conferences are held on the Fifth Floor at the 1130 O. Street, Fresno, CA 93721 Courthouse. (Do not go to the criminal court, which happens alot).
Fourth, when you arrive on the Fifth floor, be ready to mediate. The Settlement Officer or judge has only a few hours, if your lucky, to devote to your case. Hopefully, you had worked out the kinks and discrepancies in mediation, and at the Mandatory Settlement Conference you can get down "to the brass tacks" of negotiating. Negotiate hard, but negotiate to settle. The time for posturing is over. This is the time to settle.
If for some reason you are unable to settle at the Mandatory Settlement Conference, the Court may have one last chance for you to settle.
LAST CHANCE TO SETTLE--
THE TRIAL READINESS HEARING
In Fresno County Superior Court, the Court holds a Trial Readiness hearing the Friday before trial. Pursuant to Local Rule 2.5.8, "All parties to Unlimited and Limited Civil Cases for which a Trial Readiness Hearing has been calendared are required to attend a Mandatory Settlement Conference at the time and place of the Trial Readiness Hearing. The settlement conference shall be subject to the provisions of Local Rule 2.5.5."
In other words, the Court requires counsel, parties, and adjusters to also personally attend the Trial Readiness Hearing. At that time, the Court usually probes the possibility of settlement and will assign a judge (not the trial judge) and/or settlement officer to attempt one final push for settlement.
Many people forget about this requirement, show up at trial readiness, and prepared to try the case without the adjuster or client. This will rob you of one last chance to settle (and surely anger the judge). So, be ready for trial on the Friday before trial, but also be ready to settle.
Many times, the Courts are too busy to provide a meaningful opportunity for you to settle at the Trial Readiness Hearing. I have seen parties waiting to the very last minute only to find out there were not enough judges on that Friday and then they are scrambling trying to settle their case during Voir Dire.
There are several jury trials going out each week in Fresno County Superior Court, and the Court could easily say, "Are you close to settling?"
The parties say, "Not yet," still trying to posture for settlement.
The Court may retort, "See you Monday."
And then you lost your chance at resolution of a case that should settle.
Do not wait for the Trial Readiness Hearing. If you can settle at mediation or at the Mandatory Settlement Conference, do so. They are your only realistic chance of settling.
CONCLUSION
Fresno County Superior Court pushes settlement. It provides (and mandates) several opportunities to encourage the parties to settle their cases prior to swearing in a jury and consuming resources and money.
First, the Court mandates private mediation/arbitration. It requires you to submit an ADR Stipulation verifying your attempt. Failure to submit it, will cost you a personal appearance at an Order to Show Cause hearing explaining yourself. The Court requires you to mediate-- Do it. It will only help your case.
Second, the Court provides a Mandatory Settlement Conference for the parties to take another swipe at settling. It is rushed, close to trial, and usually busy, so if you can settle at mediation do so.
Third, the Court may allow time to settle at the Trial Readiness Hearing, but no guarantees you will get the time and attention your case may need. At this point, the settlement will likely involve " the numbers"; there is little time for anything else. So, if your client needs help settling, take the time to have a second or third mediation, rather than waiting for the Trial Readiness Hearing.
Fresno County Superior Court encourages settlement and provides avenues to the attorneys to settle--- use them.
WHAT NEXT?
I am a mediator and a Settlement Officer in Fresno County Superior Court. I am available for all your mediation needs. You can reach me to schedule a mediation at:
PEEL | GARCIA
3585 W. Beechwood Ave., Suite 101
Fresno, California 93711
559-431-1300
--Troy
P.S.-Get a FREE printable PDF of our
TOP 5 NEGOTIATION TIPS-
Plus 5 more BONUS tips.
(Throw it in your briefcase to read while that mediator is in the other room and impress him when it's your turn to negotiate)
**This publication is provided as an educational service and is not meant to be and should not be construed as legal advice. MOREOVER, THIS INFORMATION IS AS OF AUGUST 2018. THE COURT MAY HAVE SUBSEQUENTLY CHANGED ITS PROCEDURES SO CONSULT THE CALIFORNIA RULES OF COURT, LOCAL RULES, AND STANDING ORDERS. Readers with particular needs on specific issues should retain the services of competent counsel.
