December 22, 2005

Ask The Lawyer

‘Tis the season to mediate or arbitrate in good faith

This week’s question:
I know the spirit of the season is peace and harmony, but I have a civil case now pending in Superior Court and I have a problem with my attorney. She tells me that we must go to either mediation or non-binding arbitration before my case will be set for trial. I don’t like this since it just adds needless costs and attorney’s fees that are already outrageous. Am I forced to do this?

Matt M.
Almaden Valley

Dear Matt:
Sorry, but your attorney is absolutely correct. In most civil suits these days, each side must try one form of alternative dispute resolution, or ADR for short. There are a few exemptions from this requirement, but they are few and far between. And this fits right in with the peace and harmony of the season.

The reason for this rule is that a good share of cases are resolved either by voluntary mediation or non-binding judicial arbitration before a costly trial occurs. Another form of ADR is neutral evaluation where a disinterested third party evaluates the case for settlement potential.

Although I do not have the statistics at my disposal, I’m sure that thousands of cases are settled each month in the State of California, thanks to ADR. I would also hazard to guess that if we did not have ADR, our courts would be clogged and pressed beyond the breaking point.

Not only are most cases required to undergo one form of alternate dispute resolution, but you and your attorney have a duty to participate in good faith.

A good example of this issue is the case Rietveld v. Rosebud Storage Partners, decided in the Court of Appeal, 3rd District, in July, 2004. In this case, the trial court imposed sanctions (like a fine) of $3,055.50 on the party’s attorney for willfully failing to participate meaningfully in judicial arbitration.

In the Rietveld case, Jon and Carole Rietveld sued their former employer, Rosebud Storage Partners, and alleged a breach of contract and fraud. The case was assigned to non-binding judicial arbitration. (This tracks the normal procedure in Santa Clara County as well.)

According to the local rules of court in Sacramento, Rietveld’s attorney was to provide copies of the complaint and answer a short arbitration brief at least 10 days prior to the hearing.

Rietveld’s attorney did not do this and complicated things even further by arriving at the arbitration hearing 25 minutes late, failed to have his clients at the hearing or available by telephone, failed to present any evidence and even agreed that the facts were true in the other attorney’s arbitration brief.

Since the arbitration hearing turned out to be a grand waste of time and money, the defendant’s attorney filed a motion for sanctions, similar to a fine. The trial court agreed and assessed sanctions of $3,055.50 against the offending attorney, later reduced to $2,380 by the Court of Appeal.

The Court of Appeal found that the attorney’s failure to produce the clients and his failure to produce any evidence were egregious and showed a lack of good faith to participate meaningfully in the arbitration process required by the local rules of court.

You can read the Rietveld v. Rosebud Storage Partners case for yourself by logging onto: http://caselaw.lp.findlaw.com/data2/californiastatecases/c044766.pdf. As I always say, it is essential that you consult with your own attorney for a complete, balanced, and fair reading of this case as it may apply to your own particular situation.

Good luck, Matt. I hope your mediation or arbitration goes smoothly. Your attorney is not trying to build up your bill unnecessarily. In fact, if your case settles, it could save you a lot of money in the long run.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.