USE OF MEDIATOR DECLARATIONS IN ENFORCING SETTLEMENTS Radford v. Shehorn (August 2010) 187 Cal.App.4th 852 holds that a party cannot use a mediator’s declaration, which the opposing party had not agreed to, in a dispute about the contents of a written settlement agreement because that declaration violates “mediation confidentiality statutes.” (Id. at p. 857.) The court relied upon Evidence Code sections 703.5 and 1121 to arrive at this conclusion. Section 703.5 provides, in substance, that…
SIMMONS v. GHADERI REDUX Simmons v. Ghaderi (2008) 44 Cal.4th 570 is one of the most important decisions concerning mediation in many years but the least understood. Since many attorneys are unfamiliar with the case and what it requires, I am discussing it once again. (I first wrote about this case in Mediation Message no. 45.) In Simmons v. Ghaderi, the mother and brother of a deceased infant sought to enforce a settlement at a…
TRIAL COURTS HAVE LIMITED POWER TO ORDER MEDIATIONS This message is dedicated to those lawyers who believe that trial courts have unlimited authority to order mediation in all civil matters. In actuality, courts only have the power to order parties to mediation where the amount in controversy does not exceed $50,000 for each plaintiff. (Rule of Court 3.891, subdivision (a)(1).) Where the amount exceeds $50,000, the parties may stipulate to mediation no later than 90…
SUPREME COURT MAY SHAKE UP MEDIATION CONFIDENTIALITY On the heels of Cassel v. Superior Court (2009) 179 Cal.App.4th 152, which held that communications just before and during mediation between a client and his attorneys are not confidential (see Mediation Message no. 57 for a discussion of Cassel), comes Porter v. Wyner (2010) 183 Cal.App.4th 949, modified May 10, 2010, with a similar holding. The California Supreme Court granted a hearing in Cassel and it is…
TIMING IS EVERYTHING The timing of a mediation can be almost as important as the facts of the case. For example, it is generally accepted that mediation immediately before trial results in a settlement because of concerns about additional fees and costs and the impending uncertainty of trial. So, rather than wait for the court to order or suggest that you mediate, arrange for that process when it is most advantageous to your client. Mediate…
BRING ESSENTIAL DOCUMENTS TO THE MEDIATION Besides bringing your wits, clients and people with authority to settle the case (see Mediation Message No. 38) to mediations, you are strongly advised to bring the entire file and a long form settlement agreement. As at trial, attorneys should attend mediations with all of the pleadings, correspondence, discovery and exhibits in hard copy or accessible on a laptop, since it is often necessary, in discussing the case with…
MEDIATION CONFIDENTIALITY – ANOTHER SUPREME COURT CASE IS COMING In granting review this month in Cassel v. Superior Court (2009) 179 Cal.App.4th 152, the California Supreme Court has another opportunity to either solidify its position that mediation confidentiality should be rarely breached (see Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1; Rojas v. Superior Court (2004) 33 Cal.4th 407; Simmons v. Ghaderi (2008) 44 Cal.4th 570) or take the opposite tact that…
COMPELLING A MEDIATOR TESTIMONY California state courts allow only express waivers and potential due process violations as exceptions to mediation confidentiality. (Simmons v. Ghaderi (2008) 44 Cal.4th 570.) Although the federal courts in California are less restrictive regarding the scope of such confidentiality (see Mediation Message No. 55), they still, as a generality, only waive the concept in limited circumstances. California finds the confidentiality provisions of Evidence Code section 1119 to be less important than…
FEDERAL MEDIATION RULES REGARDING CONFIDENTIALITY Since I’ve written extensively about the impact of mediation confidentiality on California state court proceedings (see Mediation Messages 11, 17, 21, 34, 37, 39, 45 and 49), it’s only appropriate that I also discuss that principle as applied by the three California federal districts in their respective local rules. The Northern District, which has the most elaborate guidelines of the three California federal districts regarding the conduct of mediations, applies…
PROPOSED ETHICAL RULE CONCERNING MEDIATORS AND ARBITRATORS The State Bar’s Special Commission for the Revision of the Rules of Professional Conduct (RRC), which is rewriting California’s Rules of Professional Conduct, has out for public comment eleven proposed ethical rules, one of which (rule 1.12) concerns mediators, arbitrators and former judges. The comment period for these rules ends on November 13, 2009. California does not have an existing ethical rule for the conduct of mediators and…