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Getting Started With the Mediation Process

Last modified: 3/6/2012 4:10 PM
  • Step 1: Have Proof of Service or Have Been Served:
    • Plaintiffs who are interested in mediation must first have Proof of Service (The Defendant must have been served a copy of the complaint and know about the claim against him/her before DRPS may get involved. We are unable to provide you any assistance until you are able to provide us with verbal confirmation that the Defendant has been served either through certified mail or by a process server).
    • Plaintiffs with Proof of Service and Defendants should FAX a copy of the Complaint / Service Copy to the Small Claims Mediation Program Fax Number: (408) 297-2463.  Please make sure that your phone number and the other party's phone numbers are included and legible.

  • Step 2: Initiating Party Waits to be Contacted:
    • DRPS Small Claims Court Mediation Program will call you to acknowledge the receipt of your fax as promptly as possible.
    • DRPS will call to explain the mediation process; to ask about your court date and the basic details of your case; and to determine your availability to mediate in the days / weeks before the court date.

  • Step 3: DRPS Will Contact the Other Party:
    • DRPS will then call the other party to encourage their participation in the program and to cover the same information as was covered with the initiating party in Step 2, above.

  • Step 4: DRPS Will Schedule and Confirm the Mediation:
    • If the other party is willing to negotiate the case at mediation, DRPS will coordinate the date and time between the parties.
    • Please call our office if you would like any additional parties to attend the mediation with you. All parties attending must be cleared in advance of the mediation due to confidentiality.
    • If you are unable to attend this meeting, contact our office as soon as possible. It is important to do so because several people are involved in the mediation and will have to be notified. We look forward to helping you resolve this situation.

  • Step 5: Prepare for the Mediation:
    • Bring information: documents, receipts, photos, etc. that will help you explain your perspective to the other party.
    • Bring people who have crucial information: Parties who are not named in the lawsuit (Witnesses) may speak at the mediation for the purpose of illustrating points that the principal (named) parties are unable to convey on their own. The witnesses may or may not be present during the entire mediation, depending upon the parties' preference. In the case of corporations in which a CEO, president, or other figure is named, corporate employees who are more intimately familiar with the details and who are authorized to speak on behalf of the company, may participate.

  • Step 6: Think Ahead of Time:
    • About how you would like to see this resolve. Is money the only way to rectify the problem?
    • Are their other resources or services that might be useful to consider as creative alternatives to money?
    • Will the economic / employment circumstances of one of the parties affect the type of agreement that is reached?
    • What is a realistic timeline for establishing a potential payment plan?

  • Step 7: Come with an open mind.
    • Mediation does not require that you compromise in the sense that you feel that you are giving up your position. However, mediation does require that you come prepared to cooperate and listen to the other side of the story whether or not you agree with it.

  • Step 8: Show up on time.
    • Parking can be difficult, so allow enough time to locate a space and find our office.

  • Step 9: The Mediation process / what to expect:
    • When you arrive, the DRPS receptionist will greet you and ask you to be seated in the waiting area.
    • The mediator(s) will introduce themselves and guide you to one of our conference rooms.
    • Each of the parties and the mediators will introduce themselves.
      The mediator(s) will explain the mediation process, their roles, and the ground rules.
    • The mediator will explain how the mediation process coincides with court procedures.
    • Each party will be given a chance to speak to the mediator about their perspective of the case and the basis of the dispute.
    • Mediators will clarify concepts, events, and facts with the parties.
    • The parties will be given a chance to speak directly to one another to clarify and question facts, events, and misunderstandings.
    • The Mediators may choose to speak with each party separately (a term we call "Caucusing").
    • The Mediators may reconvene the parties to continue to try to reach a resolution as a group. Alternatively, the Mediators may opt to continue the mediation with the parties in separate locations. The Mediators will "shuttle" between the parties, conveying messages and facilitating the negotiation.
    • If the parties reach a resolution, the Mediators will draft the terms of the agreement in writing, review the entire agreement with the parties, and seek their signatures.
    • The Mediators will provide copies of the signed agreement to the parties. The Plaintiff will be given the original.
    • The Mediator will explain the relevant court procedure to be followed, depending upon the agreement terms.

  • Step 10: Communicate the Outcome to the Court:
    • Dismissal: If complete performance of all agreed upon terms may occur before the court date, then it would be appropriate for the Plaintiff to dismiss the case either prior to the court date with the Clerk at the Los Gatos Courthouse or in court on the appointed court date.
    • Continuance: The Plaintiff on behalf of the parties and/ or both parties will appear on the appointed court date to ask the court in its discretion to grant a continuance (a postponement) of the court date until such time that performance of the agreed upon terms can occur (usually not longer than a period of 60 days or 2 months).