The new law that is a game changer for civil litigation in California should also have quite an impact on mediation. SB 235, which took effect January 1st as CCP § 2016.090, now requires that a party may demand the other side to provide basic information at the outset of a case pertaining to witnesses and documentary evidence, without having to serve and respond to voluminous written discovery. The new law is designed to make discovery less expensive, reduce delay, and avoid clogging the courts with wasteful discovery motions. CCP § 2023.50 provides for enforcement and carries financial penalties for non-compliance. As the author of this legislation, Senator Tom Umberg explains that in order to reduce gamesmanship, the statute requires that these initial disclosures be based on information that is then reasonably available to the party, and it is not excused from making such disclosures because that party has not yet investigated its case.
So, how will this new law that requires early disclosures impact mediation? Well, in addition to reducing the delays and expense associated with discovery, the initial disclosures should also facilitate earlier and more productive mediations.
A major impediment to a successful early mediation is often the lack of information that the parties have about their respective cases. Without having done much in the way of discovery early on, sometimes an early mediation, although well-intentioned, is wholly unproductive, because neither side really understands the essence of the case, and is afraid to make concessions for fear of missing something.
What these disclosures will likely do is give each side a much better understanding of the case very early on in the process, thereby making it much more likely that an early mediation can produce a real and meaningful resolution of the case. I, therefore, expect to see more early mediations as this law starts to take effect, with a much higher success rate than perhaps we have typically seen for mediations that place fairly early on in the litigation. I am curious as to your take. Let me know your thoughts!
