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Bar Association of San Francisco Member Benefits: Publications

What’s New in Mediation?

Purchase an on-demand version of this mediation CLE seminar today


This interactive discussion led by Mediator Michael P. Carbone covers two emerging kinds of mediation: “binding mediation” and e-discovery mediation.

In the recent case of Ryan N. Bowers et al. v. Raymond J. Lucia Companies, Inc., D059333, the Court of Appeal affirmed a judgment that resulted from a process called “binding mediation.” The parties had entered into an agreement that provided that they would mediate and if they did not settle, then the mediator would be “empowered to set the amount of the judgment.” The amount would have to equal to either the plaintiff’s final demand, or the defendant’s final offer, and it would also have to be between $100,000 and $5,000,000. When the parties failed to settle, the mediator chose the $5,000,000 demand. Plaintiffs petitioned the superior court to confirm the mediator’s “award.” Although the court refused to do so, it did enforce the parties’ agreement and the resulting judgment because the parties had agreed that the “binding mediator judgment” was to be entered as a legally enforceable judgment.

E-discovery mediation is used to help parties create an e-discovery plan and to settle disputes any of various obligations associated with the discovery of electronically stored information (ESI). It derives from the two fundamental principles of cooperation and proportionality, which require a consideration of the relative costs and benefits of discovery in light of the nature of the case and amount in controversy. When parties cannot resolve the issues on their own the use of a facilitative process will be indicated.

Matters to be negotiated include the scope of parties’ obligations to preserve their ESI, the need to formulate discovery demands and responses thereto that are proportionate to the needs of the case; potential sources of ESI such as email, documents, spreadsheets, instant messages, and social media; the extent of preservation that will be required in terms of date ranges, custodians, computer systems and the like; methodologies for the search and review of ESI, including manual review, machine learning, or other advanced analytical tools; any limitations on the fields or file types to be searched; form(s) of production; and cost-shifting or cost- sharing.

Purchase the on-demand video of “What’s New in Mediation” online at

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