California law defines “mediation” as “a process in which a neutral person or persons facilitate communications between the disputants to assist them in reaching a mutually acceptable agreement.” Code of Civil Procedure Section 1775.1.
In other words, mediation is a voluntary process in which a neutral party tries to persuade people to voluntarily agree to settle their disputes. By definition, a mediator does not have any power to compel the parties to agree, or to decide any legal disputes.
Mediation has become ubiquitous in the California court system. If you file litigation, you are virtually certain, at one time or another, to have the judge send the case to mediation, at least once. In addition, parties can go to mediation, at any time, if they so desire.
Real estate contracts often provide that disputes are to go to mediation before litigation. An interesting little clause in the standard purchase and sale contract of the California Association of Realtors provides that, if you are supposed to mediation before litigation, and you do not, you lose any right you might have had to get the other side to pay your attorney fees. That clause makes it very worth your while to examine contracts before filing suit, and to seriously consider mediation.
Mediators come in many different types, from high-priced ex-Supreme Court judges to non-legally trained psychologists and everything in between. In a sense, mediation is always limited, because resolution cannot be compelled. On the other hand, in most disputes, communication between the parties is usually a good thing. If absolutely nothing else, participation in mediation will tell you a good deal about the other party’s state of mind, which is usually useful to know in disputes.