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