MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 101 ADMISSIBILITY OF MEDIATION SETTLEMENT AGREEMENTS 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…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 96 EVERYTHING YOU NEED TO KNOW ABOUT C.C.P. SECTION 664.6 Mediation Message no. 95 looked at the mechanics of enforcing settlements, pursuant to C.C.P. section 664.6. This Mediation Message supplements that analysis. Parties must personally approve an oral or written settlement. As discussed in last month’s Mediation Message, Levy v. Superior Court (1995) 10 Cal.4th 578 holds that parties must personally execute settlement agreements because that process affects substantial…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 95 ENFORCING SETTLEMENTS PURSUANT TO C.C.P. SECTION 664.6 When drafting a settlement agreement, parties have the opportunity to stipulate that the trial court “may enter judgment pursuant to the terms of the settlement.” (Code of Civil Procedure section 664.6.) If this condition is not agreed to and the case is voluntarily dismissed with prejudice, the court has lost jurisdiction over the matter. (Basinger v. Rogers & Wells (1990) 220…
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…
CREATING AN ENFORCEABLE MEDIATION SETTLEMENT AGREEMENT First came Foxgate Homeowners’ Association v. Bramalea California, Inc. (2001) 26 Cal.4th 1 which held that a mediator may not report a participating attorney’s misconduct to the trial court. Next was Rojas v. Superior Court (2004) 33 Cal.4th 403 which held that all writings prepared for mediation are not discoverable. And now the Supreme Court once more firmly supports the principle of mediation confidentiality with its July 21, 2008…
Enforcing Mediation Agreements (Part IV) Not surprisingly, the California Supreme Court held on December 15, 2006 in Fair v. Bakhtiari, no. S129220, 2006 DJDAR 16184, 2006 WL 3627208, that a settlement agreement reached through mediation is enforceable and not confidential if it incorporates the language of Evidence Code section 1123(b). (I predicted this result November 2005 in message no. 28.) In Fair, the parties concluded a mediation with a document captioned “Settlement Terms.” The final…
ENFORCEMENT OF MEDIATION SETTLEMENT AGREEMENTS (PART II) In Mediation Message No. 21 (December 2004), I observed that Fair v. Bakhtiari (2004) 122 Cal.App.4th 1457, in the absence of specific language that the parties intended their mediation settlement to be binding, had nonetheless given a very liberal interpretation to its enforceability where other language in the agreement indicated that the parties “in effect” wanted such a result. (The opinion held that the settlement at issue, which…
ENFORCEMENT OF MEDIATION SETTLEMENT AGREEMENTS (A hearing was granted in Fair v. Bakhtiari. My discussion of the Supreme Court’s opinion in the matter is at Message no. 37.) Mediation messages 11 and 17, in combination, discussed the legal principle that all oral and written mediation communications, including settlement discussions, are confidential, pursuant to Evidence Code section 1119, Foxgate Homeowners’ Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1 and Rojas v. Superior Court (2004) 33…