Don’t ask me why but I was roaming around the Official California Legislative Information web site searching for any new bills dealing with mediation and/or arbitration when I stumbled across SB 1256: An act to add Section 314 to California’s Code of Civil Procedure relating to civil law (pun intended?). Called “The Civility in Litigation Act”, the bill
…would require a person who claims to have been aggrieved by an alleged unlawful act or practice, to send a letter to the person or entity he or she alleges to have caused the harm that sets forth alleged facts in support of the grievance and any other information necessary to inform the person or entity of the alleged harm suffered, prior to filing any legal action or pursuing legally mandated alternative dispute resolution, as specified. The bill would require the person who claims to have been aggrieved to engage with that person or entity in good faith efforts to be made whole, if, during the 30-day period following the date on which the letter was received there is a response from the person or entity that is alleged to have engaged in the unlawful act or practice…” (SB 1256).
The bill would toll the statute of limitations for 30 days to allow the parties time to negotiate a resolution. If after the 30 day period, the aggrieved person receives no response, she could pursue other means of redress including filing a lawsuit. But, in that lawsuit, she must describe her good faith efforts to resolve the matter informally or attach her demand letter. Further, if the court, (or fact finder or arbiter) determines that the aggrieved person did not comply with this procedure in good faith, then it could dismiss the complaint with or without prejudice setting forth with specificity the reasoning behind the dismissal. (Id.)
In the spirit of compromise, the bill provides that any attempt by the responding party to resolve the dispute shall be considered an offer to compromise and thus inadmissible as evidence under California’s Evidence Code 1152 governing the inadmissibility of settlement negotiations. Further, any efforts by the responding party to resolve the dispute shall not be deemed admissions of participating in “the unlawful act or practice” but, at the same time, the actions of the parties can be admitted as evidence to show “good faith” or an attempt to comply with this statute. (Id.)
Naturally, this proposed bill excepts certain matters arising under family law, the penal code, the probate code and the Government code as well as “true emergencies”. (Id.)
I have always believed that much litigation arises from miscommunication or a lack of communication. People simply fail to speak to each other at all or else they talk at each other or across each other without listening to what the other is saying. They don’t speak to each other, and they don’t listen.
This bill, if passed, would require both; it would require folks to make an honest and earnest attempt to communicate, to talk to each other and to listen to what is being said. To actually let the other person know she has a grievance, what it is about and to make an attempt to resolve it BEFORE rushing into court. How many times have we heard people say that they had no clue about a dispute existing until they got served with a lawsuit? This bill, if passed, would change all that. People would have to communicate with each other, explain that they are upset and why and then try to work it out. Wow! What a novel concept!
I do not know what is behind this bill: If it is because there is too much litigation and not enough judges due to California’s budget crises or if too much of the litigation is “frivolous” or close to it, or what. But, as a conflict resolver aka mediator, I like the bill. I doubt it will go anywhere as the concept is much too “out of the box” for most folks to wrap their heads around, but I can always hope.
… Just something to think about.
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