Small Claims Mediation FAQ
Can I mediate after I file a case in small claims court?
You can ask for mediation before or after you file your case. If you file a case and come to court for the hearing, you still have a chance to mediate until the Judge calls your case. CCR mediators will often be available right inside the courthouse. You also do not have to pay for the service.
What happens with the case if I settle in mediation?
If you resolve your dispute through mediation, the mediator will help you to write a Mediation Agreement. Your case will be dismissed from the court calendar. The mediator will help you to dismiss your case and help you decide whether or the case lends itself to a dismissal with (contractual terms only/new case filing required upon default) or without prejudice (entire case facts/use of SC-105 form).
What happens with the case if I do not settle in mediation?
You do not give up your right to go to court if you settle the case in mediation. In other words if you are scheduled for the court hearing and you do not resolve your issue through mediation you case will still be decided by the Judge on the same day.
Who can take part in my small claims mediation (lawyer, insurance adjuster, friend, spouse…)?
It is not necessary to have a lawyer in mediation. However if you feel that the presence of lawyer is important to negotiate your case or you would need a legal opinion on the terms of Mediation Agreement you can bring a lawyer in mediation.
If your case involves insurance matters (for ex. liability or personal injury issues in a car accident case), you might need to have an insurance adjuster be present in mediation. It is possible to have an insurance representative on telephone standby during the mediation.
Your friends, family members can take part in mediation as well.
What is a Mediation Agreement?
If you settle the case in mediation, a mediator will help you to write the Mediation Agreement. The Mediation Agreement is a legally binding contract. The terms on which parties agreed upon in mediation will be in an agreement. Parties and mediator will sign that agreement and copies will be given to the parties. The court will retain jurisdiction of the agreement under CCP 664.6 if the parties desire.
What happens if the other party violates a Mediation Agreement?
Generally, agreements reached in mediation are enforced in the same manner as other contract. In other words if one party violates the terms of Mediation Agreement the other party can refile the case in court.
The other option might be to fill out and file an Order on Request for Court Order (Form SC-105) with the court. This form is used to ask the court to make an order. You would need to attach a copy of Mediation Agreement as a written proof that the case was settled, to the form.
Can the mediator advise me on my legal rights?
Although some mediators might have a law degree, they do not give legal advice in mediation. A mediator does not make any decisions. The mediator is a person who helps you have a constructive conversation where each person gets a chance to talk. The mediator helps explore options and find a solution that works for both of you. If you settle the mediator will act as a Scribner and you write a Mediation Agreement.