Mediation Message No. 101



In re Marriage of Daly and Oyster (2014) 228 Cal.App.4th 505 is a reminder that settlement agreements at mediation, if they contain the appropriate language, can be admissible in subsequent proceedings, notwithstanding Evidence Code section 1119, subd. (b), which states, in substance, that no writing prepared for, in the course of  or pursuant to a mediation is admissible or subject to discovery.

Daly and Oyster found that a stipulated judgment, entered into at mediation, regarding a marital settlement agreement (MSA), was admissible at a trial to enforce the judgment because it had been signed by the parties and expressed their agreement to be bound by the stipulated judgment. “Here, the parties characterized the stipulated judgment as a ‘marital settlement agreement,’ agreed it would ‘be the operable court judgment with relation to the Stipulated Judgment for Dissolution,’ and agreed the court would ‘reserve[] jurisdiction to supervise the payment of any obligation ordered paid or allocated in this Stipulated Judgment; supervise the execution of any documents required or reasonably necessary to carry out the terms of this Judgment; and supervise the overall enforcement of this Judgment.’” (Id. at p. 511) The above imprecise language, according to the appellate court, provided for the MSA’s admissibility under Evidence Code section 1123 because, in effect, it “reflected the parties’ agreement that the stipulated judgment be subject to disclosure and be enforceable.” (Ibid.) Section 1123 provides, in part, that “A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. (b) The agreement provides that it is enforceable or binding or words to that effect.” (Emphasis added.)

MDM’s helpful hint: A settlement agreement created and executed at mediation by all of the parties (and not just some of them) is admissible at a subsequent proceeding if the agreement provides either that it is admissible or subject to disclosure, or enforceable or binding, or words to that effect. Rather than risk a court fight about their respective intents concerning the prospective admissibility of a mediated agreement, parties should expressly state in the agreement that it is both “admissible or subject to disclosure and enforceable and binding” rather than hope that a court will later find that the agreement’s ambiguous terms “in effect” reflect that intent.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, August 2014

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