10 Aug: Mediation Message No. 55

FEDERAL MEDIATION RULES REGARDING CONFIDENTIALITY Since I’ve written extensively about the impact of mediation confidentiality on California state court proceedings (see Mediation Messages 11, 17, 21, 34, 37, 39, 45 and 49), it’s only appropriate that I also discuss that principle as applied by the three California federal districts in their respective local rules. The Northern District, which has the most elaborate guidelines of the three California federal districts regarding the conduct of mediations, applies…

10 Aug: Mediation Message No. 39

Mediation Confidentiality Applies to any Writing or Statement that would not have Existed but for a Mediation Communication Wimsatt v. Superior Court (June 20, 2007) no. B196903, 2007 DJDAR 8961, which not surprisingly upholds the concept of mediation confidentiality, is an interesting case nonetheless for the breadth given such confidentiality and, at the same time, its invitation to the legislature that it create exceptions to the concept. Wimsatt and his law firm, Magaña, Cathcart &…

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…