Mediation Message No. 63


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 mediators are not competent witnesses in civil proceedings concerning the conduct of the mediation. Section 1121 states that mediators may not submit a “report, assessment, evaluation, recommendation, or finding of any kind” about the mediation that is not required by rule or law, unless all parties agree otherwise.

The issue in Radford was whether a settlement agreement executed at a mediation consisted of one or two pages. One of the parties introduced the declaration of the mediator stating that the agreement had two pages. The appellate court found that the trial court erred in admitting the declaration but held that the error was harmless.

The lesson of Radford is that all parties to a mediation settlement, should they believe that a mediator’s declaration might be necessary in a future (but not yet contemplated) legal proceeding, should include language in the settlement consenting to the later admissibility of that declaration; otherwise, a subsequent declaration submitted by one party without the express agreement of the other is not admissible. Suggested language to achieve that mutual understanding could read, “The parties to this settlement agree that any of them may use the declaration of (the mediator’s name), the mediator in this matter, in all subsequent proceedings regarding that mediation and settlement, including those to enforce or interpret the terms of the settlement.” Obviously, the parties should discuss such language ahead of time with the mediator who, without such a warning, may not want to get involved in later disputes.

As a reminder, the above suggested language is meaningless unless the parties also agree in the same settlement to waive mediation confidentially, as required by Simmons v. Ghaderi (2008) 44 Cal.4th 570. (See the discussion about this issue in Mediation Messages nos. 45 and 62.) Without this additional language, the settlement is inadmissible and, thus, unenforceable, and the moving party is faced with the anomaly of an admissible mediator declaration and an inadmissible agreement. Accordingly, the following sentence should be used, along with the highlighted terms in the previous paragraph, to accomplish the goal of being able to use the mediator’s declaration: “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.”

Radford should be distinguished from motions to compel the testimony of mediators about the circumstances of confidential mediations, where there has not been a prior agreement to allow such testimony. In Mediation Message no. 56, I discussed two cases, one state and one federal, which allowed parties, in limited circumstances, to compel mediator testimony. Rinaker v. Superior Court (1998) 62 Cal.App.4th 155 holds that a mediator can be compelled to testify about the statements of a witness at mediation who is testifying adversely against juveniles in a subsequent proceeding. Olam v. Congress Mortgage Company (N.D. Cal. 1999) 68 F.Supp.2d 1110 holds that a mediator’s testimony can be compelled in a civil proceeding to establish whether a defaulting party was competent to enter into a settlement agreement that the opposing party was seeking to enforce. (It is arguable that both Rinaker and Olam are case law exceptions to the exclusion of mediator “assessment, evaluation, recommendation, or finding of any kind” as required by Evidence Code section 1121.)

Rinaker and Olam should be considered in two situations: a party to a mediation settlement agreement, in which all the parties have expressly waived mediation confidentiality (i.e., see Simmons v. Ghaderi), wants the mediator to testify regarding what occurred at the mediation or where a due process violation might occur if mediation confidentiality were used to prevent a mediator’s testimony.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Landline (310) 201-0010
Cell (310) 433-4155

Copyright Michael D. Marcus, September 2010

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