Mediation Message No. 58


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 the mediator, to refer to a complaint or answer, deposition transcript or interrogatory response or photograph or letter to support or contradict an important proposition. If the needed writing or exhibit is not available, the lawyer must then ask a person at his/her office to fax or e-mail the document. And, if the requested item cannot be found or forwarded, its immediate effectiveness is lost with resulting negative consequences.

Next, although the neutral can provide an abbreviated settlement form, have a long form agreement available in hard copy or on a lap top or memory card. Because most parties want to memorialize all of the terms in a document, even when a short form is enforceable, having the longer one at the settlement eliminates the inevitable hassling later on over its arcane language when the euphoria of the settlement has worn off.

A word of caution when using a long form. Every settlement resulting from a mediation must contain written language that waives mediation confidentiality; otherwise, the agreement is unenforceable. (Simmons v. Ghaderi (2008) 44 Cal.4th 570.) This language, to be effective, should also refer to section 664.6 and say something similar to “It is the intent of the parties, pursuant to Evidence Code sections 1122(a)(1) and 1123(b) and Code of Civil Procedure section 664.6, that all of the terms of this agreement may be disclosed to a court of law and shall be enforceable and binding upon them in a court of law.”

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, March 2010

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