| The California Supreme Court, in Simmons v. Ghaderi | | | | to sanction bad faith behavior. There is no |
| (July 21, 2008), has hammered in the last nail and has | | | | confidentiality statute making an exception for reporting |
| made confidentiality of mediation proceedings iron clad. | | | | bad faith conduct through the disclosure of mediation |
| The court held that there can be NO implied waiver of | | | | communications. |
| mediation confidentiality. An oral settlement agreement | | | | 4. Section 1115's placement within the Evidence Code |
| that is not in writing, signed by the parties and where | | | | further supports the conclusion that implied waiver |
| there is no express waiver of mediation confidentiality, | | | | does not apply to mediation confidentiality. Unlike the |
| is not admissible and will not be upheld in court. Even if | | | | privileges subject to implied waiver that are found in |
| the parties engage in bad faith behavior during a | | | | division 8, entitled "Privileges," the Legislature placed |
| mediation that would warrant sanctions, there is no | | | | section 1115 et seq. in division 9, entitled "Evidence |
| implied waiver of the mediation confidentiality. By laying | | | | Affected or Excluded by Extrinsic Policies." This |
| down clear rules, the Legislature intended, as a matter | | | | placement reflects that the Legislature considered the |
| of public policy, to reduce litigation over the admissibility | | | | specific limitations placed on the admissibility of |
| and disclosure of evidence regarding settlements and | | | | evidence by the mediation confidentiality statutes and |
| communications that occur during mediation. | | | | endorsed those limitations to encourage mediation as a |
| Dr. Ghaderi, in a wrongful death medical malpractice | | | | matter of public policy. |
| lawsuit was at the mediation with her insurance | | | | 5. Finally, the legislative history of the mediation |
| adjuster and the defense attorneys. She had given her | | | | confidentiality statutes as a whole reflects a desire |
| consent to settle, providing the settlement amount was | | | | that section 1115 et seq. be strictly followed in the |
| at or below $125,000. Plaintiff's accepted the $125,000. | | | | interest of efficiency. By laying down clear rules, the |
| However, defendant and the claims adjuster, and | | | | Legislature intended to reduce litigation over the |
| defense attorneys refused to sign the settlement | | | | admissibility and disclosure of evidence regarding |
| agreement when Dr. Ghaderi walked out of the | | | | settlements and communications that occur during |
| mediation and orally revoked her consent. Plaintiffs | | | | mediation. Allowing courts to craft judicial exceptions to |
| went to the trial court to enforce the "written | | | | the statutory rules would run counter to that intent. |
| agreement" that the mediator had drafted, and which | | | | The Supreme Court held that both the clear language |
| was signed by the plaintiffs. The trial court and court of | | | | of the mediation statutes and the prior rulings support |
| appeal awarded the settlement amount as a judgment. | | | | the preclusion of an implied waiver exception. The |
| The Supreme Court overturned the decisions and held | | | | Legislature chose to promote mediation by ensuring |
| that the mediation confidentiality statutes made | | | | confidentiality rather than adopt a scheme to ensure |
| inadmissible all evidence of an oral contract between | | | | good behavior in the mediation and litigation process. |
| plaintiffs and defendant during mediation. Specifically, no | | | | Tips to Secure an Enforceable settlement agreement |
| form of recordation of the oral agreement existed | | | | If you are a party or an advocate to a mediation |
| which was signed by all parties. | | | | proceeding, and orally agree to a settlement, REDUCE |
| The California Supreme court made the following | | | | THE SETTLEMENT TO WRITING, SIGNED BY ALL |
| points: | | | | THE PARTIES. Some mediators do not take this |
| 1. The clear language of the statutory scheme and | | | | requirement seriously and are very sloppy with having |
| other indications of legislative intent reflect that | | | | the parties reduce it to writing. |
| disallowing an implied waiver would not produce absurd | | | | Reduce the settlement to writing AT the mediation. IF |
| consequences, but was rather an intended | | | | NOT, ONE PARTY WILL HAVE BUYER'S |
| consequence. | | | | REMORSE AND will later REVOKE THE oral |
| 2. Evidence Code section 1119 sweeps broadly and | | | | CONSENT TO SETTLE. |
| renders all communications and writings made during | | | | The parties should draft the settlement agreement, not |
| mediation inadmissible except as otherwise specified in | | | | the mediator. |
| the statutes. Evidence Code Section 1122 plainly states | | | | Make sure that there is a provision in the agreement |
| that mediation communications or writings may be | | | | that the settlement is enforceable pursuant to |
| admitted only on agreement of all participants. Such | | | | California Code of Civil Procedure section 664.6, which |
| agreement must be express, not implied. The | | | | states that the Superior Court will retain jurisdiction to |
| Legislature intended Evidence code section 1122 to | | | | enforce the terms of the settlement. Following these |
| give litigants control over whether a mediation | | | | few simple steps will insure that the dispute has settled |
| communication will be used in subsequent litigation. | | | | and is enforceable if one party does not keep the |
| 3. Code of Civil Procedure section 128.5 allows a court | | | | terms of the agreement. |