10 Aug: Mediation Message No. 37

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…

10 Aug: Mediation Message No. 24

THE ROLE OF MEDIATORS AND “PARTICIPANT” CONFIDENTIALITY Mediation places decision-making in the hands of the parties rather than with the mediator, a proposition strongly reaffirmed by Travelers Casualty and Surety Company, et al. v. Superior Court (2005) 126 Cal.App.4th 1131(Travelers Casualty). In the Roman Catholic Diocese of Orange child sex abuse litigation, the Los Angeles Superior Court judge appointed by a stipulated order to mediate the multiple lawsuits, after listening to presentations from the plaintiffs…

10 Aug: Mediation Message No. 17

MEDIATION CONFIDENTIALITY UPDATED The very recent case of Rojas v. Superior Court (2004) 33 Cal.4th 407 has held that all writings prepared for a mediation are not discoverable. In Rojas, a lawsuit by the owner of an apartment complex against the apartments’ contractors and subcontractors for water leakage that caused toxic mold was resolved through mediation. The settlement included language that the consultants’ mediation reports and photographs were protected by the trial court’s case management…