Mediation Message No. 65


I thought it would be timely to summarize the mediation topics in alphabetical order that I’ve written about this year and also provide a heads up about an important development in mediation confidentiality that will take place early in 2011. Before discussing them, thank you for your support in helping me be honored by the Daily Journal for the third time in the last four years as a Top California Mediator-Arbitrator.

Compelling mediator testimony at a subsequent proceeding – Rinaker v. Superior Court (1998) 62 Cal.App.4th 155 holds that a mediator can be compelled to testify about a witness’s statements at mediation who has testified inconsistently against a juvenile in a subsequent proceeding. The federal counterpart to Rinaker is Olam v. Congress Mortgage Company (N.D. Cal. 1999) 68 F.Supp.2d 1110 which 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 at the mediation that the opposing party is now seeking to enforce. (Mediation Message no. 56, January 2010)

Enforcing mediation settlements and the use of mediator declarations – Radford v. Shehorn (2010) 187 Cal.App.4th 852, 857 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.” (Mediation Message no. 63, September 2010.)

Enforcing mediation settlements and the waiver of mediation confidentiality – To enforce a settlement achieved through mediation, the parties must have waived mediation confidentiality in the settlement. The effective, operative wording for that waiver should read, “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.” (Mediation Message no. 62, August 2010.)

Essential documents at mediation – Besides bringing to mediations your wits, clients and people with authority to settle the case, attorneys are strongly advised to bring the entire file and a long form settlement agreement. (Mediation Message no. 58, March 2010.)

Expedited Jury Trial Act – The provisions of the Expedited Jury Trial Act (Code of Civil Procedure §§ 630.01 – 630.10) and the enabling Rules of Court (Rules 3.1545 et seq.), which go into effect on January 1, 2011, are summarized. (Mediation Message no. 64, November 2010.)

Federal mediation rules regarding confidentiality – Each of the federal districts in California have their own rules regarding mediation confidentiality, with the Northern District’s being the most elaborate. (Mediation Message no. 55, December 2009.)

Supreme Court may shake up mediation confidentiality – The Court heard argument in November 2010 in two consolidated cases (Cassel v. Superior Court (2009) 179 Cal.App.4th 152 and Porter v. Wyner (2010) 183 Cal.App.4th 949) regarding the scope of mediation confidentiality where parties at mediations want to use communications with their attorneys in those proceedings in subsequent litigation against the same attorneys for claims of legal malpractice and breach of fiduciary duty. The decision, which will be issued early in 2011, must resolve the conflict between a strict application of mediation confidentiality and the potentially negative impact of such an application on consumer protection. (Mediation Message nos. 57 and 60, February and May 2010.)

Timing of a mediation is critical – The factors to be considered in deciding when to conduct a mediation are analyzed. (Mediation Message no. 59, April 2010.)

Trial courts have limited power to order mediations – State trial 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).) (Mediation Message no. 61, July 2010.)

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, December 2010

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