§ 2696.7. Mediation Conference; Failure to Appear; Confidentiality Agreement.

(a) To the extent possible the mediation conference shall be held within 21 calendar days of the date of transmission of the notice referenced in section 2696.6(c) of this subchapter. If the mediation cannot be commenced within 21 calendar days of this notice, then it shall be commenced as soon as practicable for all parties, as determined by the mediator. To the extent possible, the mediation conference shall be held in the county where the insured resides.

(b) The parties are required to appear for the mediation conference at the date, time, and location set forth on the notice referenced in subsection 2696.6(c). For the purposes of this subchapter, a party has failed to appear at the mediation conference if it:

(1) Fails to be physically present at the conference within 30 (thirty) minutes of the scheduled time;

(2) Fails to send to the conference a representative with full authority to bind settlements.

(c) For the purposes of this subchapter, the following shall apply:

(1) Should either party fail to appear at the mediation conference without good cause, that party shall bear all actual expenses charged by the mediator.

(2) Should both parties fail to appear at the mediation conference without good cause, then all actual expenses charged by the mediator shall be borne equally between the parties.

(d) “Good cause,” for the purposes of subsection 2696.7(c), shall include, but not be limited to, the unforeseen circumstances, especially medical emergencies, which preclude the physical presence of a party. The Department, upon review of the facts and circumstances provided by the parties to the mediation, including the mediator, shall decide whether good cause has been demonstrated.

(e) In order to participate in the mediation conference and before the mediation conference commences, each party to the mediation, as well as the mediator, must sign a “Confidentiality Agreement”, wherein the parties and the mediator agree that, pursuant to Insurance Code Sections 10089.80(c) and 10089.80(d), as well as California Evidence Code Sections 1115 through and including 1128, the statements made by the parties to the conference, negotiations between the parties, and documents produced at the mediation conference are confidential; and, that the mediator may not file and a court may not consider any declaration or finding of any kind by the mediator, other than a required statement of agreement or nonagreement, unless all parties to the mediation expressly agree otherwise in writing prior to the commencement of the mediation; and that the mediator shall not voluntarily testify on behalf of a party.

(f) Notwithstanding Section 2696.7(e), nothing in this subchapter shall preclude the Department from obtaining the information referenced in Section 2696.8.

HISTORY

1. New section filed 10-15-96; operative 10-15-96 (Register 96, No. 42). A Certificate of Compliance must be transmitted to OAL by 2-12-97 or emergency language will be repealed by operation of law on the following day.

2. Repealed by operation of Government Code section 11346.1(g) (Register 97, No. 10).

3. New section filed 3-4-97 as an emergency; operative 3-4-97 (Register 97, No. 10). A Certificate of Compliance must be transmitted to OAL by 7-2-97 or emergency language will be repealed by operation of law on the following day.

4. Certificate of Compliance as to 3-4-97 order, including amendment of subsection (d), transmitted to OAL 7-3-97 and filed 8-13-97 (Register 97, No. 33).

5. Renumbering of former section 2696.7 to section 2696.6 and renumbering of former section 2696.9 to new section 2696.7, including amendment of section, filed 12-29-2006; operative 1-28-2007 (Register 2006, No. 52).

Note

Note: Authority cited: Section 10089.83, Insurance Code. Reference: Sections 10089.78 and 10089.80, Insurance Code.