MEDIATION LAW AND ETHICS 2017 DANA L. CURTIScontent.sfbar.org/source/BASF_Pages/PDF/G170516 Materials...mediation conducted by the mediator, other than a report that is mandated by

MEDIATION LAW AND ETHICS 2017

DANA L. CURTIS

TABLE OF CONTENTS

Evidence Code sections 703.5 and 1115-1128

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2017 California Rules of Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rules of the State Bar of California . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Case Law, Mediation Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Case Law, Enforceability of Mediated Agreements

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Case Law, Mediator and Attorney Fee Awards

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2017 CALIFORNIA EVIDENCE CODE

MEDIATION CONFIDENTIALITY 703.5. No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could

(a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under paragraph (1) or (6) of subdivision (a) of Section 170.1 of the Code of Civil Procedure. However, this section does not apply to a mediator with regard to any mediation under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.

1115. For purposes of this chapter: (a) "Mediation" means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement. (b) "Mediator" means a neutral person who conducts a mediation. "Mediator" includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation. (c) "Mediation consultation" means a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator. 1116. (a) Nothing in this chapter expands or limits a court's authority to order participation in a dispute resolution proceeding. Nothing in this chapter authorizes or affects the enforceability of a contract clause in which parties agree to the use of mediation. (b) Nothing in this chapter makes admissible evidence that is inadmissible under Section 1152 or any other statute. 1117. (a) Except as provided in subdivision (b), this chapter applies to a mediation as defined in Section 1115. (b) This chapter does not apply to either of the following: (1) A proceeding under Part 1 (commencing with Section 1800) of Division 5 of the Family Code or Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code. (2) A settlement conference pursuant to Rule 3.1380 of the California Rules of Court. 1118. An oral agreement "in accordance with Section 1118" means an oral agreement that satisfies all of the following conditions: (a) The oral agreement is recorded by a court reporter or reliable means of audio recording.

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(b) The terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited. (c) The parties to the oral agreement expressly state on the record that the agreement is enforceable, or binding or words to that effect. (d) The recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded. 1119. Except as otherwise provided in this chapter: (a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. (b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. (c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential. 1120. (a) Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation. (b) This chapter does not limit any of the following: (1) The admissibility of an agreement to mediate a dispute. (2) The effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action. (3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute. 1121. Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118. 1122. (a) A communication or a writing, as defined in Section 250, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if either of the following conditions is satisfied:

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(1) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure of the communication, document, or writing. (2) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with Section 1118, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation. (b) For purposes of subdivision (a), if the neutral person who conducts a mediation expressly agrees to disclosure, that agreement also binds any other person described in subdivision (b) of Section 1115. 1123. A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. (b) The agreement provides that it is enforceable or binding or words to that effect. (c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure. (d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute. 1124. An oral agreement made in the course of, or pursuant to, a mediation is not made inadmissible, or protected from disclosure, by the provisions of this chapter if any of the following conditions are satisfied: (a) The agreement is in accordance with Section 1118. (b) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and all parties to the agreement expressly agree, in writing or orally in accordance with Section 1118, to disclosure of the agreement. (c) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and the agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute. 1125. (a) For purposes of confidentiality under this chapter, a mediation ends when any one of the following conditions is satisfied: (1) The parties execute a written settlement agreement that fully resolves the dispute. (2) An oral agreement that fully resolves the dispute is reached in accordance with Section 1118. (3) The mediator provides the mediation participants with a writing signed by the mediator that states that the mediation is terminated, or words to that effect, which shall be consistent with Section 1121. (4) A party provides the mediator and the other mediation participants with a writing stating that the mediation is terminated, or words to that effect, which shall be consistent with Section 1121. In a mediation involving more than two parties, the mediation may continue as to

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the remaining parties or be terminated in accordance with this section. (5) For 10 calendar days, there is no communication between the mediator and any of the parties to the mediation relating to the dispute. The mediator and the parties may shorten or extend this time by agreement. (b) For purposes of confidentiality under this chapter, if a mediation partially resolves a dispute, mediation ends when either of the following conditions is satisfied: (1) The parties execute a written settlement agreement that partially resolves the dispute. (2) An oral agreement that partially resolves the dispute is reached in accordance with Section 1118. (c) This section does not preclude a party from ending a mediation without reaching an agreement. This section does not otherwise affect the extent to which a party may terminate a mediation. 1126. Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, and confidential under this chapter before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends. 1127. If a person subpoenas or otherwise seeks to compel a mediator to testify or produce a writing, as defined in Section 250, and the court or other adjudicative body determines that the testimony or writing is inadmissible under this chapter, or protected from disclosure under this chapter, the court or adjudicative body making the determination shall award reasonable attorney's fees and costs to the mediator against the person seeking the testimony or writing. 1128. Any reference to a mediation during any subsequent trial is an irregularity in the proceedings of the trial for the purposes of Section 657 of the Code of Civil Procedure. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding, in whole or in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.

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2017 CALIFORNIA RULES OF COURT

RULE 10.781, COURT-RELATED ADR NEUTRALS

((a) Qualifications of mediators for general civil cases

Each superior court that makes a list of mediators available to litigants in general civil cases or that recommends, selects, appoints, or compensates mediators to mediate any general civil case pending in the court must establish minimum qualifications for the mediators eligible to be included on the court’s list or to be recommended, selected, appointed, or compensated by the court. A court that approves the parties’ agreement to use a mediator who is selected by the parties and who is not on the court’s list of mediators or that memorializes the parties’ agreement in a court order has not thereby recommended, selected, or appointed that mediator within the meaning of this rule. In establishing these qualifications, courts are encouraged to consider the Model Qualification Standards for Mediators in Court-Connected Mediation Programs for General Civil Cases issued by the Judicial Council staff.

(b) Lists of neutrals

If a court makes available to litigants a list of ADR neutrals, the list must contain, at a minimum, the following information concerning each neutral listed:

(1) The types of ADR services available from the neutral;

(2) The neutral’s resume, including his or her general education and ADR training and experience; and

(3) The fees charged by the neutral for each type of service.

(c) Requirements to be on lists

In order to be included on a court list of ADR neutrals, an ADR neutral must sign a statement or certificate agreeing to:

(1) Comply with all applicable ethics requirements and rules of court and;

(2) Serve as an ADR neutral on a pro bono or modest-means basis in at least one case per year, not to exceed eight hours, if requested by the court. The court must establish the eligibility requirements for litigants to receive, and the application process for them to request, ADR services on a pro bono or modest-means basis.

(d) Privilege to serve as a court-program neutral

Inclusion on a court list of ADR neutrals and eligibility to be recommended, appointed, or compensated by the court to serve as a neutral are privileges that are revocable and confer no vested right on the neutral.

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RULES OF CONDUCT FOR MEDIATORS IN COURT-CONNECTED MEDIATION PROGRAMS

FOR CIVIL CASES

Rule 3.850. Purpose and function

(a) Standards of conduct

The rules in this article establish the minimum standards of conduct for mediators in court-connected mediation programs for general civil cases. These rules are intended to guide the conduct of mediators in these programs, to inform and protect participants in these mediation programs, and to promote public confidence in the mediation process and the courts. For mediation to be effective, there must be broad public confidence in the integrity and fairness of the process. Mediators in court-connected programs are responsible to the parties, the public, and the courts for conducting themselves in a manner that merits that confidence.

(Subd (a) amended effective January 1, 2007.)

(b) Scope and limitations

These rules are not intended to:

(1) Establish a ceiling on what is considered good practice in mediation or discourage efforts by courts, mediators, or others to educate mediators about best practices;

(2) Create a basis for challenging a settlement agreement reached in connection with mediation; or

(3) Create a basis for a civil cause of action against a mediator.

(Subd (b) amended effective January 1, 2007.)

Rule 3.850 amended and renumbered effective January 1, 2007; adopted as rule 1620 effective January 1, 2003.

Rule 3.851. Application

(a) Circumstances applicable

The rules in this article apply to mediations in which a mediator:

(1) Has agreed to be included on a superior court's list or panel of mediators for general civil cases and is notified by the court or the parties that he or she has been selected to mediate a case within that court's mediation program; or

(2) Has agreed to mediate a general civil case pending in a superior court after being notified by the court or the parties that he or she was recommended, selected, or appointed by that court or will be compensated by that court to mediate a case within that court's mediation program. A mediator who is not on

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a superior court list or panel and who is selected by the parties is not "recommended, selected, or appointed" by the court within the meaning of this subdivision simply because the court approves the parties' agreement to use this mediator or memorializes the parties' selection in a court order.

(Subd (a) amended effective January 1, 2010; previously amended effective January 1, 2007, and January 1, 2009.)

(b) Application to listed firms

If a court's panel or list includes firms that provide mediation services, all mediators affiliated with a listed firm are required to comply with the rules in this article when they are notified by the court or the parties that the firm was selected from the court list to mediate a general civil case within that court's mediation program.

(Subd (b) amended effective July 1, 2007; previously amended effective January 1, 2007.)

(c) Time of applicability

Except as otherwise provided in these rules, the rules in this article apply from the time the mediator agrees to mediate a case until the end of the mediation in that case.

(Subd (c) amended effective January 1, 2007.)

(d) Inapplicability to judges

The rules in this article do not apply to judges or other judicial officers while they are serving in a capacity in which they are governed by the Code of Judicial Ethics.

(Subd (d) amended effective January 1, 2007.)

(e) Inapplicability to settlement conferences

The rules in this article do not apply to settlement conferences conducted under rule 3.1380.

(Subd (e) amended effective January 1, 2007.)

Rule 3.851 amended effective January 1, 2010; adopted as rule 1620.1 effective January 1, 2003; previously amended and renumbered effective January 1, 2007; previously amended effective July 1, 2007, and January 1, 2009.

Advisory Committee Comment

Subdivision (d). Although these rules do not apply to them, judicial officers who serve as mediators in their courts' mediation programs are nevertheless encouraged to be familiar with and observe these rules when mediating, particularly the rules concerning subjects not covered in the Code of Judicial Ethics such as voluntary participation and self-determination.

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Rule 3.852. Definitions

As used in this article, unless the context or subject matter requires otherwise:

(1) "Mediation" means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.

(2) "Mediator" means a neutral person who conducts a mediation.

(3) "Participant" means any individual, entity, or group, other than the mediator taking part in a mediation, including but not limited to attorneys for the parties.

(4) "Party" means any individual, entity, or group taking part in a mediation that is a plaintiff, a defendant, a cross-complainant, a cross-defendant, a petitioner, a respondent, or an intervenor in the case.

Rule 3.852 amended and renumbered effective January 1, 2007; adopted as rule 1620.2 effective January 1, 2003.


The definition of "mediator" in this rule departs from the definition in Evidence Code section 1115(b) in that it does not include persons designated by the mediator to assist in the mediation or to communicate with a participant in preparation for the mediation. However, these definitions are applicable only to these rules of conduct and do not limit or expand mediation confidentiality under the Evidence Code or other law.

The definition of "participant" includes insurance adjusters, experts, and consultants as well as the parties and their attorneys.

Rule 3.853. Voluntary participation and self-determination

A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties. For this purpose a mediator must:

(1) Inform the parties, at or before the outset of the first mediation session, that any resolution of the dispute in mediation requires a voluntary agreement of the parties;

(2) Respect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and

(3) Refrain from coercing any party to make a decision or to continue to participate in the mediation.


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Voluntary participation and self-determination are fundamental principles of mediation that apply both to mediations in which the parties voluntarily elect to mediate and to those in which the parties are required to go to mediation in a mandatory court mediation program or by court order. Although the court may order participants to attend mediation, a mediator may not mandate the extent of their participation in the mediation process or coerce any party to settle the case.

After informing the parties of their choices and the consequences of those choices, a mediator can invoke a broad range of approaches to assist the parties in reaching an agreement without offending the principles of voluntary participation and self-determination, including (1) encouraging the parties to continue participating in the mediation when it reasonably appears to the mediator that the possibility of reaching an uncoerced, consensual agreement has not been exhausted and (2) suggesting that a party consider obtaining professional advice (for example, informing an unrepresented party that he or she may consider obtaining legal advice). Conversely, examples of conduct that violate the principles of voluntary participation and self-determination include coercing a party to continue participating in the mediation after the party has told the mediator that he or she wishes to terminate the mediation, providing an opinion or evaluation of the dispute in a coercive manner or over the objection of the parties, using abusive language, and threatening to make a report to the court about a party's conduct at the mediation.

Rule 3.854. Confidentiality

(a) Compliance with confidentiality law

A mediator must, at all times, comply with the applicable law concerning confidentiality.

(b) Informing participants of confidentiality

At or before the outset of the first mediation session, a mediator must provide the participants with a general explanation of the confidentiality of mediation proceedings.

(c) Confidentiality of separate communications; caucuses

If, after all the parties have agreed to participate in the mediation process and the mediator has agreed to mediate the case, a mediator speaks separately with one or more participants out of the presence of the other participants, the mediator must first discuss with all participants the mediator's practice regarding confidentiality for separate communications with the participants. Except as required by law, a mediator must not disclose information revealed in confidence during such separate communications unless authorized to do so by the participant or participants who revealed the information.

(d) Use of confidential information

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A mediator must not use information that is acquired in confidence in the course of a mediation outside the mediation or for personal gain.

Rule 3.854 renumbered effective January 1, 2007; adopted as rule 1620.4 effective January 1, 2003.


Subdivision (a). The general law concerning mediation confidentiality is found in Evidence Code sections 703.5 and 1115-1128 and in cases interpreting those sections. (See, e.g., Foxgate Homeowners' Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1; Rinaker v. Superior Court (1998) 62 Cal.App.4th 155; and Gilbert v. National Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240.)

Rule 3.855. Impartiality, conflicts of interest, disclosure, and withdrawal

(a) Impartiality

A mediator must maintain impartiality toward all participants in the mediation process at all times.

(b) Disclosure of matters potentially affecting impartiality

(1) A mediator must make reasonable efforts to keep informed about matters that reasonably could raise a question about his or her ability to conduct the proceedings impartially, and must disclose these matters to the parties. These matters include:

(A) Past, present, and currently expected interests, relationships, and affiliations of a personal, professional, or financial nature; and

(B) The existence of any grounds for disqualification of a judge specified in Code of Civil Procedure section 170.1.

(2) A mediator's duty to disclose is a continuing obligation, from the inception of the mediation process through its completion. Disclosures required by this rule must be made as soon as practicable after a mediator becomes aware of a matter that must be disclosed. To the extent possible, such disclosures should be made before the first mediation session, but in any event they must be made within the time required by applicable court rules or statutes.


(c) Proceeding if there are no objections or questions concerning impartiality

Except as provided in (f), if, after a mediator makes disclosures, no party objects to the mediator and no participant raises any question or concern about the mediator's ability to conduct the mediation impartially, the mediator may proceed.


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(d) Responding to questions or concerns concerning impartiality

If, after a mediator makes disclosures or at any other point in the mediation process, a participant raises a question or concern about the mediator's ability to conduct the mediation impartially, the mediator must address the question or concern with the participants. Except as provided in (f), if, after the question or concern is addressed, no party objects to the mediator, the mediator may proceed.


(e) Withdrawal or continuation upon party objection concerning impartiality

In a two-party mediation, if any party objects to the mediator after the mediator makes disclosures or discusses a participant's question or concern regarding the mediator's ability to conduct the mediation impartially, the mediator must withdraw. In a mediation in which there are more than two parties, the mediator may continue the mediation with the nonobjecting parties, provided that doing so would not violate any other provision of these rules, any law, or any local court rule or program guideline.

(f) Circumstances requiring mediator recusal despite party consent

Regardless of the consent of the parties, a mediator either must decline to serve as mediator or, if already serving, must withdraw from the mediation if:

(1) The mediator cannot maintain impartiality toward all participants in the mediation process; or

(2) Proceeding with the mediation would jeopardize the integrity of the court or of the mediation process.



Subdivision (b). This subdivision is intended to provide parties with information they need to help them determine whether a mediator can conduct the mediation impartially. A mediator's overarching duty under this subdivision is to make a "reasonable effort" to identify matters that, in the eyes of a reasonable person, could raise a question about the mediator's ability to conduct the mediation impartially, and to inform the parties about those matters. What constitutes a "reasonable effort" to identify such matters varies depending on the circumstances, including whether the case is scheduled in advance or received on the spot, and the information about the participants and the subject matter that is provided to the mediator by the court and the parties.

The interests, relationships, and affiliations that a mediator may need to disclose under (b)(1)(A) include: (1) prior, current, or currently expected service as a mediator in another mediation involving any of the participants in the present mediation; (2) prior, current, or currently expected business relationships or transactions between the mediator and any

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of the participants; and (3) the mediator's ownership of stock or any other significant financial interest involving any participant in the mediation. Currently expected interests, relationships, and affiliations may include, for example, an intention to form a partnership or to enter into a future business relationship with one of the participants in the mediation.

Although (b)(1) specifies interests, relationships, affiliations, and matters that are grounds for disqualification of a judge under Code of Civil Procedure section 170.1, these are only examples of common matters that reasonably could raise a question about a mediator's ability to conduct the mediation impartially and, thus, must be disclosed. The absence of particular interests, relationships, affiliations, and section 170.1 matters does not necessarily mean that there is no matter that could reasonably raise a question about the mediator's ability to conduct the mediation impartially. A mediator must make determinations concerning disclosure on a case-by-case basis, applying the general criteria for disclosure under (b)(1).

Attorney mediators should be aware that under the section 170.1 standard, they may need to make disclosures when an attorney in their firm is serving or has served as a lawyer for any of the parties in the mediation. Section 170.1 does not specifically address whether a mediator must disclose when another member of the mediator's dispute resolution services firm is providing or has provided services to any of the parties in the mediation. Therefore, a mediator must evaluate such circumstances under the general criteria for disclosure under (b)(1)-that is, is it a matter that, in the eyes of a reasonable person, could raise a question about the mediator's ability to conduct the mediation impartially?

If there is a conflict between the mediator's obligation to maintain confidentiality and the mediator's obligation to make a disclosure, the mediator must determine whether he or she can make a general disclosure of the circumstance without revealing any confidential information, or must decline to serve.

Rule 3.856. Competence

(a) Compliance with court qualifications

A mediator must comply with experience, training, educational, and other requirements established by the court for appointment and retention.

(b) Truthful representation of background

A mediator has a continuing obligation to truthfully represent his or her background to the court and participants. Upon a request by any party, a mediator must provide truthful information regarding his or her experience, training, and education.

(c) Informing court of public discipline and other matters

A mediator must also inform the court if:

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(1) Public discipline has been imposed on the mediator by any public disciplinary or professional licensing agency;

(2) The mediator has resigned his or her membership in the State Bar or another professional licensing agency while disciplinary or criminal charges were pending;

(3) A felony charge is pending against the mediator;

(4) The mediator has been convicted of a felony or of a misdemeanor involving moral turpitude; or

(5) There has been an entry of judgment against the mediator in any civil action for actual fraud or punitive damages.

(d) Assessment of skills; withdrawal

A mediator has a continuing obligation to assess whether or not his or her level of skill, knowledge, and ability is sufficient to conduct the mediation effectively. A mediator must decline to serve or withdraw from the mediation if the mediator determines that he or she does not have the level of skill, knowledge, or ability necessary to conduct the mediation effectively.



Subdivision (d). No particular advanced academic degree or technical or professional experience is a prerequisite for competence as a mediator. Core mediation skills include communicating clearly, listening effectively, facilitating communication among all participants, promoting exploration of mutually acceptable settlement options, and conducting oneself in a neutral manner.

A mediator must consider and weigh a variety of issues in order to assess whether his or her level of skill, knowledge, and ability is sufficient to make him or her effective in a particular mediation. Issues include whether the parties (1) were involved or had input in the selection of the mediator; (2) had access to information about the mediator's background or level of skill, knowledge, and ability; (3) have a specific expectation or perception regarding the mediator's level of skill, knowledge, and ability; (4) have expressed a preference regarding the style of mediation they would like or expect; or (5) have expressed a desire to discuss legal or other professional information, to hear a personal evaluation of or opinion on a set of facts as presented, or to be made aware of the interests of persons who are not represented in mediation.

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Rule 3.857. Quality of mediation process

(a) Diligence

A mediator must make reasonable efforts to advance the mediation in a timely manner. If a mediator schedules a mediation for a specific time period, he or she must keep that time period free of other commitments.

(b) Procedural fairness

A mediator must conduct the mediation proceedings in a procedurally fair manner. "Procedural fairness" means a balanced process in which each party is given an opportunity to participate and make uncoerced decisions. A mediator is not obligated to ensure the substantive fairness of an agreement reached by the parties.

(c) Explanation of process

In addition to the requirements of rule 3.853 (voluntary participation and self-determination), rule 3.854(a) (confidentiality), and (d) of this rule (representation and other professional services), at or before the outset of the mediation the mediator must provide all participants with a general explanation of:

(1) The nature of the mediation process;

(2) The procedures to be used; and

(3) The roles of the mediator, the parties, and the other participants.


(d) Representation and other professional services

A mediator must inform all participants, at or before the outset of the first mediation session, that during the mediation he or she will not represent any participant as a lawyer or perform professional services in any capacity other than as an impartial mediator. Subject to the principles of impartiality and self-determination, a mediator may provide information or opinions that he or she is qualified by training or experience to provide.

(e) Recommending other services

A mediator may recommend the use of other services in connection with a mediation and may recommend particular providers of other services. However, a mediator must disclose any related personal or financial interests if recommending the services of specific individuals or organizations.

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(f) Nonparticipants' interests

A mediator may bring to the attention of the parties the interests of others who are not participating in the mediation but who may be affected by agreements reached as a result of the mediation.

(g) Combining mediation with other ADR processes

A mediator must exercise caution in combining mediation with other alternative dispute resolution (ADR) processes and may do so only with the informed consent of the parties and in a manner consistent with any applicable law or court order. The mediator must inform the parties of the general natures of the different processes and the consequences of revealing information during any one process that might be used for decision making in another process, and must give the parties the opportunity to select another neutral for the subsequent process. If the parties consent to a combination of processes, the mediator must clearly inform the participants when the transition from one process to another is occurring.

(h) Settlement agreements

Consistent with (d), a mediator may present possible settlement options and terms for discussion. A mediator may also assist the parties in preparing a written settlement agreement, provided that in doing so the mediator confines the assistance to stating the settlement as determined by the parties.

(Subd (h) amended effective January 1, 2007.)

(i) Discretionary termination and withdrawal

A mediator may suspend or terminate the mediation or withdraw as mediator when he or she reasonably believes the circumstances require it, including when he or she suspects that:

(1) The mediation is being used to further illegal conduct;

(2) A participant is unable to participate meaningfully in negotiations; or

(3) Continuation of the process would cause significant harm to any participant or a third party.

(j) Manner of withdrawal

When a mediator determines that it is necessary to suspend or terminate a mediation or to withdraw, the mediator must do so without violating the obligation of confidentiality and in a manner that will cause the least possible harm to the participants.


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Subdivision (c). The explanation of the mediation process should include a description of the mediator's style of mediation.

Subdivision (d). Subject to the principles of impartiality and self-determination, and if qualified to do so, a mediator may (1) discuss a party's options, including a range of possible outcomes in an adjudicative process; (2) offer a personal evaluation of or opinion on a set of facts as presented, which should be clearly identified as a personal evaluation or opinion; or (3) communicate the mediator's opinion or view of what the law is or how it applies to the subject of the mediation, provided that the mediator does not also advise any participant about how to adhere to the law or on what position the participant should take in light of that opinion.

One question that frequently arises is whether a mediator's assessment of claims, defenses, or possible litigation outcomes constitutes legal advice or the practice of law. Similar questions may arise when accounting, architecture, construction, counseling, medicine, real estate, or other licensed professions are relevant to a mediation. This rule does not determine what constitutes the practice of law or any other licensed profession. A mediator should be cautious when providing any information or opinion related to any field for which a professional license is required, in order to avoid doing so in a manner that may constitute the practice of a profession for which the mediator is not licensed, or in a manner that may violate the regulations of a profession that the mediator is licensed to practice. A mediator should exercise particular caution when discussing the law with unrepresented parties and should inform such parties that they may seek independent advice from a lawyer.

Subdivision (i). Subdivision (i)(2) is not intended to establish any new responsibility or diminish any existing responsibilities that a mediator may have, under the Americans With Disabilities Act or other similar law, to attempt to accommodate physical or mental disabilities of a participant in mediation.

Rule 3.860. Attendance sheet and agreement to disclosure

(a) Attendance sheet

In each mediation to which these rules apply under rule 3.851(a), the mediator must request that all participants in the mediation complete an attendance sheet stating their names, mailing addresses, and telephone numbers; retain the attendance sheet for at least two years; and submit it to the court on request.


(b) Agreement to disclosure

The mediator must agree, in each mediation to which these rules apply under rule 3.851(a), that if an inquiry or a complaint is made about the conduct of the mediator, mediation communications may be disclosed solely for purposes of a complaint procedure conducted pursuant to rule 3.865 to address that complaint or inquiry.

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(Subd (b) amended effective January 1, 2011; previously amended effective January 1, 2007.)

Rule 3.860 amended effective January 1, 2011; adopted as rule 1621 effective January 1, 2006; previously amended and renumbered effective January 1, 2007.

Article 3. Requirements for Addressing Complaints About Court-Program Mediators Rule 3.865. Application and purpose (a) Application

The rules in this article apply to each superior court that makes a list of mediators available to litigants in general civil cases or that recommends, selects, appoints, or compensates a mediator to mediate any general civil case pending in that court. A court that approves the parties' agreement to use a mediator who is selected by the parties and who is not on the court's list of mediators or that memorializes the parties' agreement in a court order has not thereby recommended, selected, or appointed that mediator within the meaning of this rule.

(Subd (a) amended and lettered effective January 1, 2010; previously adopted as part of unlettered subd effective July 1, 2009; effective date extended to January 1, 2010.)

(b) Purpose

These rules are intended to promote the resolution of complaints that mediators in court-connected mediation programs for civil cases may have violated a provision of the rules of conduct for such mediators in article 2. They are intended to help courts promptly resolve any such complaints in a manner that is respectful and fair to the complainant and the mediator and consistent with the California mediation confidentiality statutes.

(Subd (b) lettered effective January 1, 2010; previously adopted as part of unlettered subd effective July 1, 2009; effective date extended to January 1, 2010.)

Rule 3.865 amended effective January 1, 2010; adopted effective July 1, 2009, effective date extended to January 1, 2010.


As used in this article, complaint means a written communication presented to a court's complaint coordinator indicating that a mediator may have violated a provision of the rules of conduct for mediators in article 2.

Complaints about mediators are relatively rare. To ensure the quality of court mediation panels and public confidence in the mediation process and the courts, it is, nevertheless, important to ensure that any complaints that do arise are resolved through procedures that are consistent with California mediation confidentiality statutes (Evid C, §§ 703.5 and 1115 et seq.), as well as fair and respectful to the interested parties.

The requirements and procedures in this article do not abrogate or limit a court's inherent or other authority, in its sole and absolute discretion, to determine who may be included

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on or removed from a court list of mediators; to approve or revoke a mediator's eligibility to be recommended, selected, appointed, or compensated by the court; or to follow other procedures or take other actions to ensure the quality of mediators who serve in the court's mediation program in contexts other than when addressing a complaint. The failure to follow a requirement or procedure in this article will not invalidate any action taken by the court in addressing a complaint.



(1) "The rules of conduct" means rules 3.850-3.860 of the California Rules of Court in article 2.

(2) "Court-program mediator" means a person subject to the rules of conduct under rule 3.851.

(3) "Inquiry" means an unwritten communication presented to the court's complaint coordinator indicating that a mediator may have violated a provision of the rules of conduct.

(4) "Complaint" means a written communication presented to the court's complaint coordinator indicating that a mediator may have violated a provision of the rules of conduct.

(5) "Complainant" means the person who makes or presents a complaint.

(6) "Complaint coordinator" means the person designated by the presiding judge under rule 3.867(a) to receive complaints and inquiries about the conduct of mediators.

(7) "Complaint committee" means a committee designated or appointed to investigate and make recommendations concerning complaints under rule 3.869(d)(2).

(8) "Complaint procedure" means a procedure for presenting, receiving, reviewing, responding to, investigating, and acting on any inquiry or complaint.

(9) "Complaint proceeding" means all of the proceedings that take place as part of a complaint procedure concerning a specific inquiry or complaint.

(10) "Mediation communication" means any statement that is made or any writing that is prepared for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation, as defined in Evidence Code section 1115, and includes any communications, negotiations, and settlement discussions between participants in the course of a mediation or a mediation consultation.

Rule 3.866 adopted effective July 1, 2009, effective date extended to January 1, 2010.

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Paragraph (2). Under rule 3.851, the rules of conduct apply when a mediator, or a firm with which a mediator is affiliated, has agreed to be included on a superior court's list or panel of mediators for general civil cases and is notified by the court or the parties that he or she has been selected to mediate a case within that court's mediation program or when a mediator has agreed to mediate a general civil case after being notified that he or she was recommended, selected, or appointed by a court, or will be compensated by a court, to mediate a case within a court's mediation program.

Paragraphs (3) and (4). The distinction between "inquiries" and "complaints" is significant because some provisions of this article apply only to complaints (i.e., written communications presented to the court's complaint coordinator indicating that a mediator may have violated a provision of the rules of conduct) and not to inquiries.

Rule 3.867. Complaint coordinator

(a) Designation of the complaint coordinator

The presiding judge must designate a person who is knowledgeable about mediation to serve as the complaint coordinator.

(Subd (a) amended and lettered effective July 1, 2009, effective date extended to January 1, 2010; adopted as unlettered subd effective January 1, 2006.)

(b) Identification of the complaint coordinator

The court must make the complaint coordinator's identity and contact information readily accessible to litigants and the public.

(Subd (b) adopted effective July 1, 2009, effective date extended to January 1, 2010.)

Rule 3.867 amended and renumbered effective July 1, 2009, effective date extended to January 1, 2010; adopted as rule 1622.1 effective January 1, 2006; previously amended and renumbered as rule 3.866 effective January 1, 2007.


The alternative dispute resolution program administrator appointed under rule 10.783(a) may also be appointed as the complaint coordinator if that person is knowledgeable about mediation.

Rule 3.868. Complaint procedure required

Each court to which this article applies under rule 3.865 must establish a complaint procedure by local rule of court that is consistent with this article.

Rule 3.868 amended and renumbered effective July 1, 2009, effective date extended to January 1, 2010; adopted as rule 1622 effective January 1, 2003; previously amended effective January 1, 2006; previously amended and renumbered as rule 3.865 effective January 1, 2007.

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Rule 3.869. General requirements for complaint procedures and complaint proceedings

(a) Submission and referral of inquiries and complaints to the complaint coordinator

All inquiries and complaints should be submitted or referred to the complaint coordinator.

(b) Acknowledgment of complaint

The complaint coordinator must send the complainant a written acknowledgment that the court has received the complaint.

(c) Preliminary review and disposition of complaints

The complaint coordinator must conduct a preliminary review of all complaints to determine whether the complaint can be informally resolved or closed, or whether the complaint warrants investigation.

(d) Procedure for complaints not resolved through the preliminary review

The following procedures are required only if a complaint is not resolved or closed through the preliminary review.

(1) Mediator's notice and opportunity to respond

The mediator must be given notice of the complaint and an opportunity to respond.

(2) Investigation and recommendation

(A) Except as provided in (B), the complaint must be investigated and a recommendation concerning court action on the complaint must be made by either an individual who has experience as a mediator and who is familiar with the rules of conduct stated in article 2 or a complaint committee that has at least one such individual as a member.

(B) A court with eight or fewer authorized judges may waive the requirement in (A) for participation by an individual who has experience as a mediator in conducting the investigation and making the recommendation if the court cannot find a suitable qualified individual to perform the functions described in (A) or for other grounds of hardship.

(3) Final decision

The final decision on the complaint must be made by the presiding judge or his or her designee, who must not be the complaint coordinator or an individual who investigated the complaint before its submission for final decision.

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(e) Notice of final action

(1) The court must send the complainant notice of the final action taken by the court on the complaint.

(2) If the complaint was not closed during the preliminary review, the court must send notice of the final action to the mediator.

(f) Promptness

The court must process complaints promptly at all stages.

(g) Records of complaints

The court should maintain sufficient information about each complaint and its disposition to identify any history or patterns of complaints submitted under these rules.



Judicial Council staff have developed model local rules that satisfy the requirements of this rule. These model local rules were developed with input from judicial officers, court administrators, alternative dispute resolution (ADR) program administrators, court-program mediators, and public commentators and are designed so that they can be readily adapted to the circumstances of individual courts and specific complaints. Courts are encouraged to adopt rules that follow the model rules, to the extent feasible. Courts can obtain copies of these model rules from the Judicial Council's civil ADR program staff.

Subdivision (a). Coordination of inquiries and complaints by a person knowledgeable about mediation is important to help ensure that the requirements of this article are followed and that mediation confidentiality is preserved.

Subdivision (c). Courts are encouraged to resolve inquiries and complaints about mediators using the simplest, least formal procedures that are appropriate under the circumstances, provided that they meet the requirements stated in this article.

Most complaints can be appropriately resolved during the preliminary review stage of the complaint process, through informal discussions between or among the complaint coordinator, the complainant, and the mediator. Although complaint coordinators are not required to communicate with the mediator during the preliminary review, they are encouraged to consider doing so. For example, some complaints may arise from a misunderstanding of the mediator's role or from behavior that would not violate the standards of conduct. These types of complaints might appropriately be addressed by providing the complainant with additional information or by informing the mediator that certain behavior was upsetting to a mediation participant.

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The circumstances under which a complaint coordinator might informally resolve or close a complaint include, for example, when (1) the complaint is withdrawn; (2) no violation of the rules of conduct appears to have occurred; (3) the alleged violation of the rules of conduct is very minor and the mediator has provided an acceptable explanation or response; and (4) the complainant, the mediator, and the complaint coordinator have agreed on a resolution. In determining whether to close a complaint, the complaint coordinator might also consider whether there are or have been other complaints about the mediator.

Subdivision (d). At the investigation and recommendation stage, all courts are encouraged to consider using a complaint committee comprised of members with a variety of backgrounds, including at least one person with experience as a mediator, to investigate and make recommendations concerning those rare complaints that are not resolved during the preliminary review.

Courts are also encouraged to have a judicial officer who is knowledgeable about mediation, or a committee that includes another person who is knowledgeable about mediation, make the final decision on complaints that are not resolved through the preliminary review. Rule 3.870. Permissible court actions on complaints

After an investigation has been conducted, the presiding judge or his or her designee may do one or more of the following:

(1) Direct that no action be taken on the complaint;

(2) Counsel, admonish, or reprimand the mediator;

(3) Impose additional training requirements as a condition of the mediator remaining on the court's panel or list;

(4) Suspend the mediator from the court's panel or list or otherwise temporarily prohibit the mediator from receiving future mediation referrals from the court; or

(5) Remove the mediator from the court's panel or list or otherwise prohibit the mediator from receiving future mediation referrals from the court.



This rule does not abrogate or limit any existing legal right or duty of the court to take other actions, including interim suspension of a mediator pending final action by the court on a complaint.

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Rule 3.871. Confidentiality of complaint proceedings, information, and records

(a) Intent

This rule is intended to:

(1) Preserve the confidentiality of mediation communications as required by Evidence Code sections 1115-1128;

(2) Promote cooperation in the reporting, investigation, and resolution of complaints about court-program mediators; and

(3) Protect mediators against damage to their reputations that might result from the disclosure of unfounded complaints against them.

(Subd (a) amended effective July 1, 2009, effective date extended to January 1, 2010; previously amended effective January 1, 2007.)

(b) Preserving the confidentiality of mediation communications

All complaint procedures and complaint proceedings must be designed and conducted in a manner that preserves the confidentiality of mediation communications, including but not limited to the confidentiality of any communications between the mediator and individual mediation participants or subgroups of mediation participants.

(Subd (b) amended effective July 1, 2009, effective date extended to January 1, 2010.)

(c) Confidentiality of complaint proceedings

All complaint proceedings must occur in private and must be kept confidential. No information or records concerning the receipt, investigation, or resolution of an inquiry or a complaint may be open to the public or disclosed outside the course of the complaint proceeding except as provided in (d) or as otherwise required by law.

(Subd (c) amended effective July 1, 2009, effective date extended to January 1, 2010; previously amended effective January 1, 2007.)

(d) Authorized disclosures

After the decision on a complaint, the presiding judge, or a person whom the presiding judge designates to do so, may authorize the public disclosure of information or records concerning the complaint proceeding that do not reveal any mediation communications. The disclosures that may be authorized under this subdivision include the name of a mediator against whom action has been taken under rule 3.870, the action taken, and the general basis on which the action was taken. In determining whether to authorize the disclosure of information or records under this subdivision, the presiding judge or the designee should consider the purposes of the confidentiality of complaint proceedings stated in (a)(2) and (a)(3).

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(Subd (d) amended effective July 1, 2009, effective date extended to January 1, 2010; previously amended effective January 1, 2007.)

(e) Disclosures required by law

In determining whether the disclosure of information or records concerning a complaint proceeding is required by law, courts should consider the purposes of the confidentiality of complaint proceedings stated in (a). If it appears that the disclosure of information or records concerning a complaint proceeding that would reveal mediation communications is required by law, before the information or records are disclosed, notice should be given to any person whose mediation communications may thereby be revealed.

(Subd (e) amended effective July 1, 2009, effective date extended to January 1, 2010; previously amended effective January 1, 2007.)



Under rule 3.866(9), the complaint proceedings covered by this rule include proceedings to address inquiries as well as complaints (i.e., to unwritten as well as written communications indicating that a mediator may have violated a provision of the rules of conduct).

Subdivision (a). See Evidence Code sections 1115 and 1119 concerning the scope and types of mediation communications protected by mediation confidentiality. Rule 3.871 is intended to supplement the confidentiality of mediation communications established by the Evidence Code by ensuring that disclosure of information or records about a complaint proceeding does not reveal confidential mediation communications. Rule 3.871 is not intended to supersede or abrogate the confidentiality of mediation communications established by the Evidence Code.

Subdivision (b). Private meetings, or "caucuses," between a mediator and subgroups of participants are common in court-connected mediations, and it is frequently understood that these communications will not be disclosed to other participants in the mediation. (See Cal. Rules of Court, rule 3.854(c).) It is important to protect the confidentiality of these communications in complaint proceedings so that one participant in the mediation does not learn what another participant discussed in confidence with the mediator without the consent of the participants in the caucus communication.

Subdivisions (c)-(e). The provisions of (c)-(e) that authorize the disclosure of information and records related to complaint proceedings do not create any new exceptions to mediation confidentiality. Although public disclosure of information and records about complaint proceedings that do not reveal mediation communications may be authorized under (d), information and records that would reveal mediation communications may be publicly disclosed only as required by law (e.g., in response to a subpoena or court order)

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and consistent with the statutes and case law governing mediation confidentiality. A person who is knowledgeable about California's mediation confidentiality laws should determine whether the disclosure of mediation communications is required by law.

Evidence Code sections 915 and 1040 establish procedures and criteria for deciding whether information acquired in confidence by a public employee in the course of his or her duty is subject to disclosure. These sections may be applicable or helpful in determining whether the disclosure of information or records acquired by judicial officers, court staff, and other persons in the course of a complaint proceeding is required by law or should be authorized in the discretion of the presiding judge.

Rule 3.872. Disqualification from subsequently serving as an adjudicator

A person who has participated in a complaint proceeding or otherwise received information about the substance of a complaint, other than information that is publicly disclosed under rule 3.871(d), must not subsequently hear or determine any contested issue of law, fact, or procedure concerning the dispute that was the subject of the underlying mediation or any other dispute that arises from the mediation as a judge, an arbitrator, a referee, or a juror, or in any other adjudicative capacity, in any court action or proceeding.



Persons who participated in a complaint proceeding are prohibited from subsequently adjudicating the dispute that was the subject of the underlying mediation or any other dispute that arises from the mediation because they may have learned of confidential mediation communications that were disclosed in the complaint proceeding or may have been influenced by what transpired in that proceeding. Because the information that can be disclosed publicly under rule 3.871(d) is limited and excludes mediation communications, it is unnecessary to disqualify persons who received only publicly disclosed information from subsequently adjudicating the dispute.

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RULES OF THE STATE BAR OF CALIFORNIA

TITLE 2. RIGHTS AND RESPONSIBILITIES OF MEMBERS DIVISION 3. MEMBER STATUS

Rule 2.30 Inactive membership

(A) Any member not under suspension, who does not engage in any of the activities listed in (B) in California, may, upon written request, be enrolled as an inactive member. The Secretary may, in any case in which to do otherwise would work an injustice and subject to any direction of the board permit retroactive enrollment of inactive members.

(B) No member practicing law, or occupying a position in the employ of or rendering any legal service for an active member, or occupying a position wherein he or she is called upon in any capacity to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law, shall be enrolled as an inactive member.

(C) Notwithstanding (A) and (B) a member serving for a court or any other governmental agency as a referee, hearing officer, court commissioner, temporary judge, arbitrator, mediator or in another similar capacity is eligible for enrollment as an inactive member if he or she does not otherwise engage in any of the activities listed in (B) or hold himself or herself out as being entitled to practice law.

Rule 2.30 adopted effective August 19, 2006; amended effective July 20, 2007.

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SUMMARY OF CALIFORNIA CASE LAW By Dana Curtis and Daniel Bowling1

CASE LAW MEDIATION CONFIDENTIALITY CALIFORNIA SUPREME COURT Foxgate v. Bramalea, (2001) 26 Cal. 4th 1 Plaintiff in a construction dispute moved for sanctions against defendant on the ground that defendant had failed to participate in good faith when, among other things, the attorney appeared late and failed to bring insurance carriers and experts, as ordered by the court-appointed mediator. The Court of Appeal created an exception to Evid C section 1119 for information “reasonably necessary to describe sanctionable conduct and place that conduct in context.” The Supreme Court reversed and concluded there were “no exceptions” to mediation confidentiality of mediation communications. The court held that the Evid C provisions governing mediation “unequalifiedly bar … disclosure of communications made during mediation absent express statutory exception.” While the Evid C allows a party to reveal noncommunicative “conduct” of a participant in mediation, it precludes disclosure of mediation “communications” and a mediator’s assessment of a participant’s conduct. The court held that whether exceptions to confidentiality should be made to encourage good faith participation is a question for the Legislature.

Rojas v. Superior Court (2004) 33 Cal. 4th 407

In a construction defect lawsuit brought by tenants alleging they were damaged from mold in their apartment complex, tenants moved to compel the production of documents and photographs exchanged in a prior mediation between the owner of the apartment and the construction company. The trial court narrowly construed Evid C Code section 1119(b), which precludes discovery or admission of writings prepared in connection with a mediation, and denied the motion discovery. Applying attorney work product principles, the Court of Appeal held that this statute did not protect “nonderivative” material such as raw data, photos and witness statements and that derivative material, such as charts, compilations and expert reports, were discoverable on a showing of good cause. The Supreme Court reversed, holding that the statute was to be enforced in accordance with its plain terms. The court held that by enacting Evid C Code section 1119, the Legislature specifically intended to extend protection to all types of nonderivative material, including raw data, photographs and witness statements, if “prepared for the

1 For a survey of mediation-related litigation in the U.S., compiled by Professors James Coben and Peter Thompson, see http://www.hamline.edu/law/adr/ (and click on the Mediation Case Law Project link.

Copyright Dana Curtis and Daniel Bowling, 2012. All rights reserved.

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purpose of, in the course of, or pursuant to, a mediation....” Reversing the Court of Appeal, the Supreme Court concluded there was no evidence of a legislative intent to create a “good cause” exception to this protection. The court held there was no good cause exception for derivative material, because no judicially created exception to section 1119 was needed to carry out legislative intent or avoid an absurd result. Fair v. Bakhtiari (2006) 40 Cal. 4th 189 At the conclusion of mediation, the parties signed a document entitled “Settlement Terms,” in which the final provision stated, “Any and all disputes subject to JAMS arbitration rules.” Shortly thereafter they filed a report informing the court the case had settled in mediation. The parties were unable to conclude the formal settlement agreement, and plaintiff filed a motion to compel arbitration under the terms of the settlement memorandum. The trial court held the term sheet inadmissible and denied the motion to compel. The Court of Appeal reversed, holding that the term sheet was admissible because the arbitration provision constituted “words to [the] effect” that the settlement terms were “enforceable or binding” under Evid C section 1123(b). The Supreme Court reversed, holding the “terms of agreement” inadmissible. Balancing the requirements of flexibility and clarity, without eroding the confidentiality that is “essential to effective mediation,” the court concluded that to fit within the “words to that effect” provision of section 1123(b) a writing must “directly express the parties’ agreement to be bound by the document they sign.” The agreement must “make clear that it reflects an agreement and is not simply a memorandum of terms for inclusion in a future agreement.” While the writing need not be in finished form to be admissible, “it must be signed by the parties and include a direct statement to the effect that it is enforceable or binding.” Simmons v. Ghaderi (2008) 44 Cal. 4th 570 In Simmons, the California Supreme Court interpreted the mediation confidentiality statutes for the fourth time and held, consistent with Foxgate Homeowners’ Assn., Inc v. Bramalea California, Inc., that exceptions to mediation confidentiality must be enacted by the Legislature, not created by the judiciary. Dr. Ghaderi, the defendant in a medical malpractice case, attended mediation with her insurer’s claim specialist, the carrier’s attorney and Cumis counsel. At the session, Dr. Ghaderi signed a consent form authorizing her insurer to negotiate a settlement with a $125,000 limit. The form provided that her consent only could be revoked in writing and would remain in force until the revocation was received at the insurer’s offices. During the mediation session, the claims specialist agreed to settle the matter for $125,000, in exchange for a dismissal with prejudice and a waiver of costs. Plaintiffs accepted orally. The mediator put the essential terms into a document for the parties’ signatures. Dr. Ghaderi, who had been waiting in another room with Cumis counsel, declared she was revoking her consent. She and her representatives left without signing the document. One week after the mediation session, she sent her insurer a letter formally revoking her consent to settle.

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After failing to enforce the oral settlement under CCP section 664.6, because Dr. Ghaderi had not signed the settlement document, plaintiffs sued for breach of the oral settlement agreement. During discovery and her motion for summary adjudication, Dr. Ghaderi did not dispute the events that had occurred during the mediation session. In fact, she confirmed them in a declaration to support her argument that no enforceable contract was formed during mediation. However, 15 months after the mediation session she asserted that the mediation confidentiality statutes precluded plaintiffs from proving the existence of an oral settlement agreement. At trial, plaintiffs submitted, over objection, the signed consent form, the settlement agreement prepared by the mediator, Dr. Ghaderi’s written revocation, her deposition testimony and that of the insurer’s claims specialist, and a declaration from the mediator. The trial court held there was a valid enforceable oral contract before Dr. Ghaderi withdrew her consent. A Court of Appeal majority affirmed, holding further that, because Dr. Ghaderi had presented evidence of the occurrences at the mediation and had failed to object to plaintiff’s use of the facts during pretrial motions, she was estopped from asserting mediation confidentiality. In dissent, Justice Aldrich maintained that the majority’s focus on estoppel was “a veiled attempt at relabeling waiver as estoppel” and that a party cannot impliedly waive mediation confidentiality through litigation conduct. The Supreme Court agreed. The court noted that, except in cases of express waiver (e.g., Olam v Congress Mort. Co., 68 F.Supp.2d 1110 [N.D.Cal.1999]) or where due process is implicated (e.g., Rinaker v Superior Court (1988) 62 CA4th 464, 74 CR2d 464), it had been held that mediation confidentiality is to be strictly enforced. Id. at 582. The Supreme Court held that estoppel principles did not apply, either to contest jurisdiction, as in cases cited by plaintiffs, or equitably. 44 C4th at 584. The court also adopted the Court of Appeal conclusion in Eisendrath v. Superior Court (2003) 109 CA4th 351, 357, 134 CR2d 716, that mediation confidentiality cannot be impliedly waived by conduct and cited Evid C section 1122 that requires an express agreement by all persons who conduct or otherwise participate in mediation that confidentiality may be waived. Id. at 585–88. The court concluded (44 C4th at 588), “Both the clear language of the mediation statutes and our prior rulings support the preclusion of an implied waiver exception. The Legislature chose to promote mediation by ensuring confidentially rather than adopt a scheme to ensure good behavior in the mediation and litigation process. The mediation statutes provide clear and comprehensive rules reflecting that policy choice.” Cassel v. Superior Court (2011) 51 Cal. 4th 1132 The California Supreme Court, in its fifth decision concerning mediation confidentiality, determined the effect of the mediation confidentiality statutes on private discussions between a mediating client and attorneys who represented him in the mediation. Acknowledging that its decision may compromise petitioner Michael Cassel’s (Cassel) ability to prove his claim of legal malpractice, the court held that evidence of private

2 The Cassel opinion contains an excellent summary of the California decisions concerning mediation confidentiality.

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conversations among Cassel and his attorneys in preparation for and during mediation were confidential and therefore not discoverable or admissible, even for the purposes of proving a claim for malpractice. Id. at 137, citing Evid C section 1119(a). Cassel sued his attorneys, defendants and real parties in interest Wasserman, Comden, Casselman & Pearson, L.L.P. (WCCP), and members of the firm, including attorneys Wasserman and Casselman, for legal malpractice in conjunction with their representation of him in a business dispute. After the dispute settled in mediation for $1.25 million, Cassel filed a complaint alleging his lawyers coerced him to settle for an amount lower than he told them he would accept prior to the mediation. Before trial in the malpractice case, the lawyers moved to exclude evidence of private attorney-client discussions immediately preceding and during the mediation concerning mediation settlement strategies and the lawyers’ efforts to persuade Cassel to reach a settlement. The trial court granted the motion. The testimony the lawyers sought to exclude concerned Cassel’s claims that prior to mediation he and his lawyers agreed he would accept no less than $2 million to settle the case, but when the opposing party would pay no more than $1.25 million at the mediation, his lawyers coerced him to accept the low offer. Among the evidence Cassel sought to introduce were discussions in which his lawyers allegedly accused him of being “greedy” by holding out and pressed him to accept a low offer; threatened to abandon him before trial; misrepresented significant terms of the proposed settlement; falsely promised him to negotiate a side deal to make up for deficits in the settlement and to waive or discount legal fees if Cassel accepted the offer. Cassel eventually signed the settlement agreement, believing that, he claimed, he had no other choice because he would not be able to find new counsel before trial. Citing mediation confidentiality statutes, the lawyers moved in limine to exclude evidence of all attorney-client communications related to the mediation, including private discussions occurring prior to and during the mediation. After examining Cassel’s deposition and hearing further testimony from Casselman, the trial court ruled that information about the conduct of the mediation session itself was protected by mediation confidentiality, as were all pre-mediation discussions between Cassel and the lawyers and private attorney-client communications during the mediation that took place outside the presence of the mediator. The court also ruled inadmissible, as communicative conduct, the act of a WCCP attorney in accompanying petitioner to the bathroom during the mediation. On the basis of Cassel’s petition in a writ of mandate proceeding, the Court of Appeal vacated the trial court’s order, holding that mediation confidentiality statutes do not extend to communications between mediation participants and their attorneys outside the presence of other participants in the mediation. The court concluded that a mediation disputant and the disputant’s lawyers are a single mediation “participant” for purposes of section 1122(a)(2) and, therefore, the lawyers could not block the Cassel’s disclosure of their communications by refusing, as a separate “participant,” to waive any mediation confidentiality that might otherwise apply. To conclude otherwise would unfairly allow the mediation confidentiality statutes to hamper a malpractice action by overriding the

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waiver of the attorney-client privilege provided by Evid C section 958 when a client sues lawyers for malpractice. In ruling on Cassel’s appeal, the Supreme Court first focused on the plain meaning of the mediation confidentiality statutes, beginning with Evid C section 1119, which sets forth the standard of admissibility for oral and written communications made during the mediation process, particularly Evid C section 1119(a), which states that “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any . . . civil action . . .” (51 C4th at 123, emphasis added by court). The court interpreted this broad language to be evidence of the legislature’s intent to create expansive protection for communications made at any stage of the mediation, including those made before the session began or when speakers were physically removed from the mediation environment. Comparing Evid C section 1119 to its predecessor, Evid C section 1152, the court observed section 1119 to be more expansive than §1152, as it protects communications made “for the purpose of” mediation in addition to those “made during the course” of mediation. Based on the legislative history of §1119, the court declared that “[t]he obvious purpose of the expanded language is to ensure that the statutory protection extends beyond discussions carried out directly between the opposing parties to the dispute, or with the mediator, during the mediation proceedings themselves.” Without an explicit exception in the text, the plain meaning of Evid C section 1119 protects all communications, oral or written, made both in preparation for the mediation session and during the mediation session, including private discussions between mediation disputants and their attorneys, like those between Cassel and his lawyers. Cassel argued that mediation confidentiality should never apply to private attorney-client communications, because it is almost impossible to tell whether communications relate exclusively to mediation when they occur close in time to a mediation proceeding but in a broader litigation context. Id. at 137. The Court rejected this proposition on the basis that excluding all private attorney-client communications from the proviso of Evid C section 1119 “would simply engraft an exception that does not appear in the mediation confidentiality statutes themselves.” The court next looked to Evid C section 1122, which permits some participants to agree to disclosure of otherwise confidential communications in certain enumerated circumstances, and, in particular section 1122(a)(2), which permits disclosure of communications involving fewer than all of the mediation participants, if those participants expressly agree to disclosure, as long as “the communication, document, or writing does not disclose anything said or done . . . in the course of the mediation.” This exception evidences that the legislature anticipated that fewer than all participants may confer during a mediation session, and “[s]uch mediation-related communications plainly encompass those between a mediation disputant and the disputant’s counsel, even though these occur away from other mediation participants and reveal nothing about the mediation proceedings themselves.” Id. at 129. As such, the court held that they fall within the mediation confidentiality statutes unless section 1122(a)(2) applies because the parties agree otherwise, which the parties in the present case did not do. The court also rejected the Court of Appeal’s determination that the communications between

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Cassel and the lawyers fell outside the scope of mediation confidentiality statutes because the attorneys were not “parties” (or mediation disputants) or “participants.” The Supreme Court held that all participants to the mediation process were protected by the mediation confidentiality statutes, and therefore communications made between any participants were confidential, a conclusion supported by California Law Revision Commission comments to Evid C section 1119 suggesting even a passive observer is considered a participant and entitled to confidentiality protection, and section 1122(a)(1), providing “all participants, including not only the parties but also the mediator and other nonparties attending the mediation” may agree that otherwise confidential communications could be made discoverable. In addition, the court rejected Cassel’s argument that policy considerations supporting a client’s statutory privilege of confidentiality and right to waive it to introduce communications between attorney and client in legal malpractice actions pursuant to Evid C section 958 apply to permit disclosure that the mediation confidentiality statutes. Acknowledging that absent legislative intent to create an exception, courts may create judicial exceptions where due process interests are affected, or when following the plain meaning of the statute will produce a result that is so absurd as to be obviously contrary to the legislature’s presumed intent, the court concluded that no fundamental due process concerns were implicated by the mere loss of evidence pertinent to a civil lawsuit for damages flowing from legal malpractice, a conclusion supported by its decisions in Foxgate, Rojas, Fair, and Simmons. The court also noted that mediation confidentiality statutes do not create a privilege in favor of a single person, as does Evid C section 958, rather they reflect the intent of the legislature to promote the public policy of encouraging efficient resolution of disputes without litigation. Further, the court has consistently refused to find exceptions to mediation confidentiality merely to accommodate competing policy concerns, “even where the equities appeared to favor them.” Consistent with its previous opinions, the court held that according to the plain meaning of the text the mediation confidentiality statutes protect all communications between mediation disputants and their representative counsel. CALIFORNIA COURTS OF APPEAL Rinaker v. Superior Court (1998) 62 Cal. App. 4th 165 Two minors accused of vandalizing a car sought to compel the testimony in a juvenile delinquency proceeding of the person who had mediated in a civil harassment action brought against them by the victim. The minors claimed the victim admitted in the mediation that he did not see who committed the vandalism. The mediator objected to testifying, citing Evid C section 1119. The Court of Appeal held the mediator could be compelled to testify if it appeared the application of the Evid C would deprive the minors of their Constitutional right, in a juvenile delinquency proceeding, to due process (to cross-examine and impeach witnesses). This right took precedence over confidentiality of mediation. The Court of Appeal directed the juvenile court to hold an in camera hearing with the mediator “to weigh the ‘constitutionally based claim of need against the

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statutory privilege’ and determine whether …. [the mediator’s] testimony [was] necessary to ‘vindicate [the minors’ rights of confrontation.’” Eisendrath v. Superior Court (2003) 109 Cal. App. 4th 351 In the context of a dispute involving a marital settlement agreement, husband moved to correct spousal support provisions negotiated in mediation based on conversations during mediation but outside of sessions with the mediator. Wife waived mediation confidentiality and moved for a continuance to depose the mediator. Husband requested a protective order barring the mediator’s testimony. The trial court denied the protective order on the ground that husband impliedly waived confidentiality and ordered an in camera hearing to determine whether the mediator should be compelled to testify.

The Court of Appeal reversed, concluding confidentiality cannot be impliedly waived. Further, it was unnecessary to imply a waiver to avoid an unfair result, because the conversations on which husband based his motion were made in the course of and for the purpose of the mediation and were covered by the Evid C, even though they occurred outside mediator’s presence. Consequently, evidence of the conversations could not be admitted without express waivers by both parties, nor could the mediator’s testimony be taken absent waivers by the parties and the mediator. The mediator is incompetent to testify under Evid C section 703.5, and the court refused to find an exception. Unlike Rinaker, there was no Constitutional right at stake. The court also distinguished Olam, in which the mediator was asked to testify on a narrow issue peripheral to the agreement, whereas testimony sought in Eisendrath involved the very terms of the agreement.

Doe I v. Superior Court (2005) 132 Cal. App. 4th 1160 In a priest abuse case, the defendant priests had participated in mediation in which the church had submitted written summaries of its files concerning the priests, thereby conceding it had notice of the conduct of some of the priests. The priests moved the trial court for a protective order on the ground that disclosure would violate Evid C section 1122(a)(2), which allows a writing made in a mediation to be disclosed if it was prepared by or on behalf of fewer than all mediation participants, the participants expressly agree to disclosure and writing does not disclose anything said or done or any admission made in the course of mediation. The trial court granted the protective order because the proffers impermissibly disclosed admissions in mediation or revealed the diocese’s position as to priests.

The Court of Appeal upheld the trial court’s decision and enforced confidentiality to bar disclosure of the information, citing section 1122 (a)(2), and held that the Evid C prevents the disclosure of admissions by any party, even by the party who made them.

Kieturakis v. Kieturakis (2006) 138 Cal. App. 4th 56 The trial court denied wife’s motion to set aside a marital settlement agreement reached in mediation (and the judgment incorporating it) on grounds of fraud, duress and lack of disclosure. During the proceeding, wife had refused to waive confidentiality to allow husband to defend himself against the allegations and counter the presumption of undue influence attaching to unequal marital transactions. The trial court admitted evidence from mediation over wife’s and the mediator’s objections, thereby defeating her case.

The Court of Appeal held that presumption of undue influence in marital transactions must yield to policies favoring mediation and finality of judgment, but also concluded that any error in admitting the evidence from the mediation was harmless. Concluding

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that that husband should not have been made to bear the burden of proof on wife’s motion, the court held that the presumption of undue influence cannot be applied to a marital settlement agreement reached in mediation, since mediation involves voluntary participation and self-determination. Furthermore, the parties acknowledged in the agreement that no undue influence was exercised. Wimsatt v. Superior Court (Kausch), (2007) 152 Cal. App. 4th 137 Plaintiff and real party in interest Kausch sued Magaña, Cathcart & McCarthy and his Attorney William H. Wimsatt (“Magaña”) for legal malpractice in representing him in a personal injury lawsuit. Among other allegations, Kausch alleged Magaña breached its fiduciary duty by submitting an unauthorized settlement demand to the opposing party. Kausch learned of this potentially unauthorized act from a “confidential mediation brief” submitted to a mediator in the lawsuit. Magaña sought a writ of mandate compelling the trial court to vacate its order denying Magaña's application for a protective order and, instead, to enter an order that will protect “mediation-related” communications. Magaña contended three items were protected from disclosure by Evid C sections 1115, et seq.: (1) all mediation briefs; (2) e-mails sent the day before the mediation that quoted from a mediation brief; and (3) a communication made by Wimsatt to the personal injury defendants purportedly lowering Kausch's settlement demand. Magaña sought a protective in the trial court to seal this evidence. The trial court created an exception to mediation confidentiality by ruling, based upon Kausch's argument that Wimsatt's deposition testimony was perjurious because it was inconsistent with, and contrary to, other statements made by him, and ruled that “the [L]egislature did not intend confidentiality of mediation proceedings to be so complete as to shield perjury or inconsistent statements.” The Court of Appeal upheld in part and reversed in part the trial court’s ruling. Noting that mediation confidentiality is to be applied where the writing or statement would not have existed but for a mediation communication, negotiation or settlement discussion the court held that the briefs and the e-mails were protected by mediation confidentiality, but that Magaña did not meet its burden of proof with regard to the oral communication by Wimsatt. The court issued a writ of mandate directing the trial court to issue a protective order only with respect to the mediation briefs and the e-mails. Interestingly, the court admonished parties and lawyers to be wary of mediation confidentiality: “In light of the harsh and inequitable results of the mediation confidentiality statutes (Evid C, sections 1115, et seq.), such as those set out above, the parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute. If they do not intend to be bound by the mediation confidentiality statutes, then they should “’make [it] clear at the outset that something other than a mediation is intended.’ (Doe 1, supra, 132 Cal.App.4th at p. 1166.)”

Castenada v Department of Corrections (2013) 212 CA4th 1051, 151 CR3d 648 Plaintiff prevailed at trial based on allegations that defendant failed to provide appropriate medical care to plaintiff’s imprisoned relative. The Court of Appeal reversed. At trial plaintiff asserted that defendant was estopped from raising the issue of her failure to file a tort claim, basing her argument in part on evidence of conversations that occurred in mediation. In reversing, the court noted that plaintiff had not submitted any evidence in

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support of her estoppel claim, and registered “surpris[e]” that the trial court relied, in part, on evidence of “statements made, or discussions had, during mediation.” And, citing Simmons v Ghaderi (2008) 44 C4th 570, 580, 80 CR3d 83, the court held that “[S]tatements made during mediation and mediation materials are confidential not only during the mediation, but also after the mediation ends.”

Kurtin v Elieff (2013) 215 CA4th 455, 155 CR3d 573 Two parties in a lawsuit concerning real estate ventures resolved their dispute with a mediated settlement agreement requiring Elieff to buy out Kurtin’s interests in four installment payments. Elieff signed the agreement on behalf of himself and joint entities in which he held one-quarter interest. When the fourth payment was not paid, Kurtin sued to enforce the agreement. The trial court denied Kurtin’s request, finding the joint entities were not parties.

In his opposition to Kurtin’s writ petition, Elieff asserted he (Elieff) did not have authority to bind the joint entities; therefore, his interest alone could be subject to legal action. Ultimately, the parties, including the other members of the joint entities signed a settlement agreement in which they agreed to an arbitration limiting the authority of the arbitrator “to imply a reasonable term that the arbitrator finds consistent with the purpose and intent of this Settlement Agreement.” The arbitrator entered an award in favor of Kurtin for $24,411,433.86, but limited the right to foreclose to Elieff’s own interests in the joint entities.

Kurtin then sued Elieff and the joint entities for an accounting and to impose liability upon Elieff for misrepresenting his authority to bind the joint entities. Elieff sought to admit parol evidence of mediation discussions to clarify ambiguous provisions in the settlement agreement, and Kurtin moved to exclude. The trial court granted Kurtin’s motion. Ultimately, the jury awarded Kurtin $8 million in damages.

On appeal Elieff argued the court should have required Kurtin to drop his claim when he asserted mediation confidentiality, because absent the ability to introduce parol evidence of mediation discussions Elieff could not have a fair trial. He argued that as in malpractice cases, where otherwise confidential information received from the complaining client is admissible, he should either have been allowed to present evidence otherwise precluded by the mediation confidentiality to defend himself or Kurtin should have been required to drop his claims.

The court concluded otherwise and held that parol evidence in the form of mediation communications may not be introduced to interpret a mediated settlement agreement. The court noted that Elieff had used evidence from the mediation to clear up, in his favor, at least one ambiguity in the settlement agreement before trial in arbitration. Moreover, the court reasoned citing Cassel v Superior Court, supra, “if there is a price to be paid in fairness to preserve mediation confidentiality, the cases have required that it be paid by parties challenging, not defending, what transpired in the mediation.” Id. at 87.

In re Marriage of Daly & Oyster (2014) 228 CA4th 505, 175 CR3d 364 Daly filed for dissolution of marriage in 2005, but did not serve Oyster. In 2006, she filed a second dissolution petition and moved to have the stipulated judgment the parties reached in 2006 entered in both the dismissed and the new proceedings. She explained

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that she did not file it previously because she mistakenly thought the mediator would do so. Oyster argued that he thought the 2006 stipulated judgment memorialized merely the first round of negotiations, after which he would be given an opportunity to request modifications.

The trial court denied Daly’s motion to enter the 2006 judgment in both proceedings. At trial, Oyster objected to admission of the stipulated judgment based on Evid C §1119. The trial court overruled the objection, finding that the stipulated judgment constituted an enforceable marital settlement.

On appeal, Oyster argued the 2006 agreement was inadmissible under Evid C §1119. The court disagreed, holding that language in the agreement “clearly reflected the parties’ agreement that the stipulated judgment be subject to disclosure and be enforceable.” Id. Furthermore, the parties agreed the court would enforce the document, which it could not do unless admitted. Id. at 510–11.

Optional Capital, Inc. v DAS Corp. (2014) 222 CA4th 1388, 166 CR3d 705 In a lawsuit based on allegations of conversion and fraudulent conveyance following a mediated settlement agreement, defendant sought. to preclude evidence of events occurring in the mediation pursuant to Evid C §1119. The Court of Appeal held that plaintiff’s claims of tortious conduct were “not based upon statements made in the settlement conference, but upon wrongful conduct external to the . . . litigation settlement” (i.e., the wrongful conversion of plaintiff’s funds). Id. at 1403. Therefore, the evidence was clearly admissible.

Lappe v Superior Court (2014) 232 CA4th 774, 181 CR3d 510 Gilda and Murray Lappe entered into a mediated marital settlement agreement to resolve all issues related to their property and support, which was later incorporated into a stipulated judgment. They purported in their settlement to have exchanged financial disclosure declarations as required by the Family Code, although Gilda denies they did so. Shortly after entry of judgment, Gilda learned Murray had sold a company he founded during the marriage, Gilda’s community share of which she had relinquished to him for $10 million as part of their marital settlement. Murray received approximately $75 million from the sale.

Gilda filed an application to set aside the judgment on grounds of fraud and duress. In discovery, she requested the financial disclosure declarations Murray claimed to have exchanged prior to entry of judgment. Murray refused to produce the declarations, claiming Evid C §1119(b) precluded their admissibility as writings “prepared for the purpose of, in the course of, or pursuant to, a mediation.” Gilda moved to compel production, and the trial court denied the motion on mediation confidentiality grounds.

On appeal by writ petition, Gilda contended the mediation confidentiality statutes did not apply, because the financial disclosure declarations were prepared pursuant to and for the purpose of complying with the Family Code’s statutory mandate, not for mediation. The court agreed, reasoning that the final declarations were prepared and exchanged not pursuant to a mediation or to serve a party’s negotiation strategy, but pursuant to a statutory duty imposed by the Family Code to ensure that divorcing spouses would have full and accurate information upon which to base a fair and

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equitable division of assets. Lappe, supra, at 6.

Moreover, even if the parties’ financial disclosure documents were prepared for mediation, the court held, they were nevertheless admissible pursuant to Evid C §1120 as a writing that was otherwise admissible or subject to discovery outside of a mediation. Id. The court also reasoned that because the Family Code mandated their exchange, financial disclosure documents would have existed and been exchanged in the normal course of a dissolution without a mediation. Id. In addition, their introduction at mediation did not relieve the parties of their disclosure obligation or shield the declarations from discovery. Id.

The court distinguished financial disclosure documents from mediation communications held to be inadmissible on mediation confidentiality grounds in other cases, but cautioned that its decision did not constitute a judicially created exception to the mediation confidentiality statutes. Rather, the declarations of disclosure “do not come within the ambit of Evidence Code section 1119 because they are not prepared for ‘the purpose of, in the course of, or pursuant to, a mediation.’” Id. at 7 n.8.

Amis v Greenberg Traurig (2015) 235 CA4th 331, 185 CR3d 322 In a legal malpractice case, plaintiff sought to circumvent mediation confidentiality by advancing inferences about his former attorney’s supposed acts or omissions during an underlying mediation. Id. at 333. The trial court refused to admit this evidence. On appeal, the court held that the mediation confidentiality statutes barred defendant from defending itself against such an inference. Id. at 329. The court reasoned: “To permit such an inference would allow Amis to attempt to accomplish indirectly what the statutes prohibit him from doing directly—namely, proving GT advised him to execute the settlement agreement during the mediation.” Id. at 341.

The court sympathized with Amis’s claim that mediation confidentiality was not intended to protect attorneys from malpractice claims. Nevertheless, applying Cassel, supra, 51 C4th 113, the court held: “Amis cannot prove that any act or omission by GT caused him to enter the settlement agreement and, hence, to suffer his alleged injuries, because all communications he had with defendant regarding the settlement agreement occurred in the context of mediation.” Amis at 328–9 (citation omitted). The court joined numerous other courts in noting “that seemingly unintended consequence is for the Legislature, not the courts, to correct.” Id. at 340 (citation omitted).

CALIFORNIA FEDERAL COURTS Olam v. Congress Mortgage Company (N.D. Cal. 1999) 68 Fed.Supp.2nd 1110 The parties consented to mediation with a court mediator under the Northern District of California ADR Program. The case settled in mediation, and defendant moved to enforce the settlement. Plaintiff opposed the motion, claiming she was subject to undue influence in the mediation. The parties waived confidentiality to permit testimony about the mediation. The court deemed the mediator to have objected and addressed the question of whether the mediator could be compelled to testify notwithstanding Evid C section 703.5’s bar to a mediator’s testifying in a subsequent civil proceeding.

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The court interpreted Rinaker to call for two-stage balancing analysis: 1) to determine whether interests of comparable or greater magnitude to the values underlying confidentiality in mediation militated in favor of compelling the mediator to appear at an in camera proceeding to reveal what the mediator’s testimony would be; and 2) to decide whether the mediator’s testimony “was essential to doing justice.” After conducting this analysis, the trial judge concluded that barring the testimony “would do considerable harm not only to the court’s mediation program but also to fundamental fairness.” He ordered the mediator to testify under seal and admitted the testimony. Benesch v. Green 2009 WL 4885215 (N.D. Cal.) Fritzi Benesch sued her former attorney Sharon Green for legal malpractice arising from a mediation in connection with a state court action brought by Benesch against her daughter, her son-in-law, her estate planning attorney and the law firm of Orrick Herrington & Sutcliffe. At the end of a mediation in the case, the parties executed a document entitled Terms of Settlement (“Term Sheet”). Subsequently, Benesch argued in state court that the Term Sheet did not accurately reflect her intent in significant respects. The state court rejected this argument and entered an order enforcing the settlement. Benesch then sued her attorney Sharon Green in San Francisco County Superior Court. Following Green’s motion, the case was removed to federal court based on diversity jurisdiction. Thereafter, Green moved to amend its answer to add the defense that plaintiff’s complaint was barred by California’s mediation confidentiality statutes (Evid C sections 1115, et seq.) and for summary judgment, on the basis that confidentiality statutes prevented Benesch from establishing her malpractice claim and precluded Green from meaningfully defending against the complaint. Benesch filed a non-opposition to defendant’s motion to amend the answer and the district court granted the motion. As to Green’s motion for summary judgment, the court denied it without prejudice based on its extensive discussion of California statutory and case law on mediation confidentiality. The district court looked to California Evid C section 1122, which enumerates limited exceptions to mediation confidentiality, and found no applicable exception. The court also reviewed California case law, including Foxgate v. Bramelea and Simmons v. Ghaderi, in which the California Supreme Court strictly applied the mediation confidentiality statutes “. . . even when doing so may lead to an inequitable result.” The district court also looked to the Court of Appeal decision in Wimsatt v. Superior Court, which recognized that the application of mediation confidentiality to a mediation may well mean that a party is forced to forego any claims for alleged legal malpractice. The district court also examined the recent California Court of Appeal decision in Cassel v. Superior Court and observed that it is in “significant tension with the large majority of California appellate decisions that apply mediation confidentiality more expansively….” The court concluded that the reasoning of the Cassel dissent was more persuasive than the majority and also that it was true to the statutory language and the California Supreme Court’s injunction not to create implied exceptions. The court held that evidence of mediation communications offered by Benesch was not admissible under Evid C section 1119, but nevertheless denied Green’s motion for summary judgment, holding

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that Benesch was entitled to conduct discovery to see if she could uncover evidence not protected by mediation confidentiality statutes in support of her claim. Facebook, Inc. v Pac. Northwest Software, Inc. (2011) 640 F 3d 1034 Cameron Winklevoss, Tyler Winklevoss and Divya Narendra (the Winklevosses) sued Facebook and Mark Zuckerberg in Massachusetts, claiming Zuckerberg stole the idea for Facebook from them. Facebook countersued them and their social networking site ConnectU in California, alleging the Winklevosses and ConnectU hacked into Facebook and used stolen user data to spam Facebook users. The federal district court in California dismissed the Winklevosses from the California case and ordered the parties to mediation. ConnectU, Facebook and the Winklevosses participated in mediation. Prior to mediation, the participants signed a confidentiality agreement stipulating that all statements made during mediation were privileged, non-discoverable and inadmissible “in any arbitral, judicial, or other proceeding.” After a day of mediation, ConnectU, Facebook and the Winklevosses signed a handwritten “Term Sheet & Settlement Agreement” (the Agreement) in which the Winklevosses agreed to give up ConnectU in exchange for cash and Facebook stock. The parties stipulated that the Agreement was “confidential,” “binding” and “may be submitted into evidence to enforce [it].” The settlement broke down during negotiation of the formal settlement documents and Facebook filed a motion to enforce the Agreement. ConnectU opposed the motion, arguing that the Agreement was unenforceable in part because it lacked material terms and had been procured by securities fraud, as Facebook had led the parties to believe its stock was worth $35.90 per share, when it knew it was worth $8.88. The district court found the Agreement to be enforceable. The court held the Winkelvosses’ securities claims failed, as the parties’ confidentiality agreement precluded the Winkelvosses from introducing any evidence of what Facebook said or did not say during mediation to prove their claim that Facebook misled them about the value of its shares or that Facebook failed to disclose its tax valuation, which would have added to the information available at the mediation. Id. at 1041. Furthermore, the court observed, as sophisticated parties the Winklevosses “face[d] a steep uphill battle” in proving their securities claims. They were fighting over ownership of one of the world’s fastest-growing companies; they had “a good deal” of information about Facebook through discovery; they were represented in mediation “half-a-dozen” lawyers; and Cameron and Tyler Winkelvoss’ father, who also participated in the mediation, was a former Wharton School of Business accounting professor and an expert in valuation. Id. at 1039. Additionally, the court noted

Parties involved in litigation … have every reason to be skeptical of each other’s claims and representations … [and] can use discovery to ferret out a great deal of information before even commencing settlement negotiations. They can further protect themselves by requiring that the adverse party

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supply the needed information, or provide specific representations and warranties as a condition of signing the settlement agreement. Id.

Finally, the court noted that the settlement appeared to be “quite favorable in light of recent market activity,” 3.33 times the value the Winklevosses claim they thought Facebook’s shares were worth at the mediation. “At some point, litigation must come to an end. That point has now been reached.” Id. at 1042. In re: TFT-LCD (Flat Panel) Antitrust Litigation (9th Cir. 2016) 835 F.3d 1155 At trial, the District Court held that California law applied in determining whether email evidencing a mediated settlement agreement was admissible in an action to enforce the agreement. On appeal, the Ninth Circuit reversed, concluding that federal mediation confidentiality law (Fed R Evid 708) applied. 835 F3d at 1159.

The Ninth Circuit noted that federal common law generally governs claims of privilege (Fed R Evid 501): when federal question and pendent state law claims are both present, the federal law of privilege applies. The court held that even though plaintiff had dismissed its federal claims by the time it sued to enforce the settlement agreement, at the time the parties engaged in mediation their negotiations “concerned both issues; the evidence that [plaintiff]seeks to admit ‘relates’ to both federal and state law claims. At the time of mediation, both parties would have expected to litigate both federal and state law issues.” 835 F.3d at 1159.

In dissenting, Chief District Judge Lynn reasoned that in deciding whether state or federal law applies courts should analyze the case “against the backdrop of the claims pending in a lawsuit when a party seeks to admit evidence.” Id. At the time plaintiff sought to admit the evidence, only state claims remained; therefore, the dissent concluded, the district court correctly applied California law. Id.

CASE LAW, ENFORCEABILITY OF MEDIATED SETTLEMENT AGREEMENTS CALIFORNIA SUPREME COURT Fair v. Bakhtiari (2006) 40 Cal. 4th 189 At the conclusion of mediation, the parties signed a document entitled “Settlement Terms,” in which the final provision stated, “Any and all disputes subject to JAMS arbitration rules.” Shortly thereafter they filed a report informing the court the case had settled in mediation. The parties were unable to conclude the formal settlement agreement, and plaintiff filed a motion to compel arbitration under the terms of the settlement memorandum. The trial court held the term sheet inadmissible and denied the motion to compel. The Court of Appeal reversed, holding that the term sheet was admissible because the arbitration provision constituted “words to [the] effect” that the settlement terms were “enforceable or binding” under Evid C section 1123(b). The Supreme Court reversed, holding the “terms of agreement” inadmissible. Balancing the requirements of flexibility and clarity, without eroding the confidentiality that is

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“essential to effective mediation,” the court concluded that to fit within the “words to that effect” provision of section 1123(b) a writing must “directly express the parties’ agreement to be bound by the document they sign.” The agreement must “make clear that it reflects an agreement and is not simply a memorandum of terms for inclusion in a future agreement.” While the writing need not be in finished form to be admissible, “it must be signed by the parties and include a direct statement to the effect that it is enforceable or binding.” CALIFORNIA COURTS OF APPEAL Stewart v. Preston Pipeline (2006) 134 Cal. App. 4th 1565 In a personal injury case, on defendants’ motion to enter judgment under Code of Civil Procedure section 664.6, the Court of Appeal considered whether a mediated settlement agreement was admissible under Evid C section 1123 when it was signed by the attorney for defendants and not defendants themselves. The court held the attorney had the right to waive confidentiality of the agreement and the attorney’s signature satisfied section 1123’s requirement that the agreement be signed by the settling parties.

Elnekave v. Via Dolce Homeowners Association (2006) 142 Cal. App. 4th 1193 Plaintiffs in a toxic mold case moved, pursuant to Code of Civil Procedure section 664.6, to enforce an oral settlement agreement entered in the record, following failed attempts to reduce it to writing. Defendant homeowners association opposed the motion in part because the agreement was not signed by a member of its board of directors. The trial court denied the motion. On appeal by defendant, the Court of Appeal reversed on the ground that the association’s insurer (whose policy was not in the record) and a third party representative (property manager) signed the agreement – not a board member or officer. Provost v. Regents of the University of California (2011) 201 Cal App 4th 1289 Plaintiff Glenn Provost sought to set aside a settlement agreement on the ground that he was coerced into signing it by both his and defendant’s attorneys, who, he asserted, told him that defendant would file criminal charges against him if he did not sign and that his civil case would fail because Orange County juries were pro-defense. The argument was rejected. Evid C section 1119 unqualifiedly bars disclosure of communications made during mediation, absent an express statutory exception, even where this protection may sometimes result in the unavailability of valuable civil evidence. Bowers v Raymond J. Lucia Cos. (2012) 206 CA4th 724, 142 CR3d 64 Prior to a decision in an arbitration proceeding parties to a defamation and related business torts lawsuit resolved their dispute by agreeing to mediate and empowering the mediator to make a binding award by selecting from either plaintiffs’ final demand or defendant’s final offer at the end of a day of mediation not resulting in agreement. When the parties failed to reach agreement at the end of a day of mediation, the defendant had offered $5,000 and the plaintiffs had demanded $5 million. The mediator awarded plaintiffs $5 million, which the trial court entered as a judgment.

On appeal, defendant argued (1) he never agreed to binding mediation; (2) the contract term providing for binding mediation was too uncertain to be enforceable; and (3)

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binding mediation is not a constitutionally and statutorily permissible means of waiving jury trial rights. The court rejected all of these arguments and affirmed the mediator’s award.

In re Marriage of Woolsey (2013) 220 CA4th 881, 163 CR3d 551 After the husband (Clark) failed to comply with the terms of the marital settlement agreement he reached in mediation with his wife, Anna, she moved to enforce the agreement under CCP §664.6. Clark opposed the motion, in part, by asserting that Anna failed to make timely financial disclosures under Fam C §§2104 and 2105, that the parties did not attempt to resolve their disputes arising from their settlement agreement in mediation prior to litigating the issues, and he was subjected to undue influence during the mediation, rendering the agreement unenforceable.

The trial court entered judgment of dissolution based on the parties’ mediated agreement. In upholding the decision, the Court of Appeal ruled that “strict compliance with sections 2104 and 2105 is not required for private mediations that address issues arising out of a marital dissolution.” 220 CA4th at 892. The court reasoned that to require technical compliance with disclosure rules designed for adversarial litigation would “undermine the strong public policy of allowing parties to choose speedy and less costly avenues for resolving their disputes.” Id.

The court also held, consistent with In re Marriage of Kieturakis (2006) 138 CA4th 56, 41 CR3d 119, that Clark’s claim of undue influence was precluded by Evid C §1119 and, in addition, “there is no presumption of undue influence in a marital settlement agreement reached as the result of mediation.” Woolsey, 220 CA4th at 901.

CALIFORNIA FEDERAL COURTS Facebook, Inc. v Pac. Northwest Software, Inc. (2011) 640 F 3d 1034 The US Court of Appeals for the Ninth Circuit addressed whether an agreement signed at the end of mediation but intended to be completed after mediation contained essential terms such that it was enforceable. The trial court held that the parties’ handwritten “Term Sheet & Settlement Agreement” (the Agreement), signed at the end of a day of mediation, was unenforceable because it lacked material terms. The court of appeal disagreed, holding that the terms were sufficiently definite for a court to determine whether a breach has occurred, order specific performance or award damages. The parties agreed that Facebook would “swallow up” ConnectU, that the Winklevosses would get cash and a small interest in Facebook and that the settlement would resolve all of their disputes. Id. at 1037. The court also held that the Agreement was enforceable “even though everyone understood that some material aspects of the deal would be papered later,” and instructed that the lower court could, if necessary, “fill in missing terms by reference to the rest of the contract, extrinsic evidence and industry practice.” Id. at 1038.

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MEDIATOR AND ATTORNEY FEE AWARDS Cullen v Corwin (2012) 206 CA4th 1074, 142 CR3d 419 Reasoning that that parties who have a contractual obligation to participate in mediation “are not entitled to postpone [mediation] until they feel that they have marshaled the strongest possible support for their positions in litigation and mediation,” the court held that plaintiffs’ refusal to mediate until after a decision on their motion for summary judgment precluded them from recovering attorney fees to which they were otherwise entitled. Grossman v Park Fort Wash. Ass’n (2013) 212 CA4th 1128, 152 CR3d 48 The Court of Appeal upheld an award of attorney fees that included costs and attorney time for participating in prelitigation mediation.

After the trial court ruled in favor of plaintiff homeowners in their action against defendant homeowners association, plaintiffs filed a motion for attorneys’ fees pursuant to the parties’ CC&Rs that included 38.1 hours of attorney time and plaintiffs’ share of the mediator’s fee incurred in connection with a mediation that took place before plaintiffs filed their lawsuit. In opposing the motion, defendant argued that the recovery for costs and time spent on prelitigation mediation was not authorized by the attorneys’ fees provision contained in Civ C §5975, former §1354(c), which permits recovery of fees and costs in an action to enforce the governing documents of a common interest development.

The court held that Civ C §5975, former §1354(c) permits such recovery of reasonable fees and costs, and a party “does not act unreasonably when it spends money on attorney fees and costs during prelitigation alternative dispute resolution (ADR). The alternate view—that such expenditures are categorically unreasonable—is contrary to the strong public policy of promoting the resolution of disputes through mediation and arbitration.” 212 CA4th at 1133. The statutory scheme of the Davis-Stirling Common Interest Development Act, Civ C §4000 et seq. requires a prospective plaintiff to submit the dispute to ADR before filing a lawsuit to enforce the governing documents, “effectively mak[ing] ADR mandatory and, therefore, preclud[ing] a determination that the time and effort spent pursuing ADR was unreasonable per se.” 212 CA4th at 1134.

Additionally, the court held, Civ C §5975, former §1369.580, which provides that a party’s refusal to participate in ADR before the start of the action could affect the attorneys’ fees award, “strongly implies that the attorney fees a prevailing party spent trying to convince a recalcitrant party to submit the dispute to ADR could be recovered, if otherwise reasonable.” 212 CA4th at 1134.

The court extended Grossman (and Civ C §5975) to apply the fee-shifting provisions of Davis-Stirling to a lawsuit to enforce an agreement reached during mediation in Rancho Mirage Country Club Homeowners Association v Hazelbaker (2016) 2 CA5th 252, 206 CR3d 233, The court held that a motion for attorney fees was appropriate as an action “to enforce the governing documents,” where the mediation was initiated pursuant to Davis-Stirling. 2 CA5th at 259.

MEDIATION LAW AND ETHICS 2017 DANA L. CURTIS

TABLE OF CONTENTS

Evidence Code sections 703.5 and 1115-1128

. . . . . . . . . . . . . . . . . . . . . . . . . . 1

2017 California Rules of Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rules of the State Bar of California . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Case Law, Mediation Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Case Law, Enforceability of Mediated Agreements

. . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Case Law, Mediator and Attorney Fee Awards

. . . . . . . . . . . . . . . . . . . . . . . . . . .

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2017 CALIFORNIA EVIDENCE CODE MEDIATION CONFIDENTIALITY

703.5. No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could

(a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under paragraph (1) or (6) of subdivision (a) of Section 170.1 of the Code of Civil Procedure. However, this section does not apply to a mediator with regard to any mediation under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.

1115. For purposes of this chapter: (a) "Mediation" means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement. (b) "Mediator" means a neutral person who conducts a mediation. "Mediator" includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation. (c) "Mediation consultation" means a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator. 1116. (a) Nothing in this chapter expands or limits a court's authority to order participation in a dispute resolution proceeding. Nothing in this chapter authorizes or affects the enforceability of a contract clause in which parties agree to the use of mediation. (b) Nothing in this chapter makes admissible evidence that is inadmissible under Section 1152 or any other statute. 1117. (a) Except as provided in subdivision (b), this chapter applies to a mediation as defined in Section 1115. (b) This chapter does not apply to either of the following: (1) A proceeding under Part 1 (commencing with Section 1800) of Division 5 of the Family Code or Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code. (2) A settlement conference pursuant to Rule 3.1380 of the California Rules of Court. 1118. An oral agreement "in accordance with Section 1118" means an oral agreement that satisfies all of the following conditions: (a) The oral agreement is recorded by a court reporter or reliable means of audio

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recording. (b) The terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited. (c) The parties to the oral agreement expressly state on the record that the agreement is enforceable, or binding or words to that effect. (d) The recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded. 1119. Except as otherwise provided in this chapter: (a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. (b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. (c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential. 1120. (a) Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation. (b) This chapter does not limit any of the following: (1) The admissibility of an agreement to mediate a dispute. (2) The effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action. (3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute. 1121. Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118. 1122. (a) A communication or a writing, as defined in Section 250, that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if either of the following conditions is satisfied:

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(1) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure of the communication, document, or writing. (2) The communication, document, or writing was prepared by or on behalf of fewer than all the mediation participants, those participants expressly agree in writing, or orally in accordance with Section 1118, to its disclosure, and the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation. (b) For purposes of subdivision (a), if the neutral person who conducts a mediation expressly agrees to disclosure, that agreement also binds any other person described in subdivision (b) of Section 1115. 1123. A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. (b) The agreement provides that it is enforceable or binding or words to that effect. (c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure. (d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute. 1124. An oral agreement made in the course of, or pursuant to, a mediation is not made inadmissible, or protected from disclosure, by the provisions of this chapter if any of the following conditions are satisfied: (a) The agreement is in accordance with Section 1118. (b) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and all parties to the agreement expressly agree, in writing or orally in accordance with Section 1118, to disclosure of the agreement. (c) The agreement is in accordance with subdivisions (a), (b), and (d) of Section 1118, and the agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute. 1125. (a) For purposes of confidentiality under this chapter, a mediation ends when any one of the following conditions is satisfied: (1) The parties execute a written settlement agreement that fully resolves the dispute. (2) An oral agreement that fully resolves the dispute is reached in accordance with Section 1118. (3) The mediator provides the mediation participants with a writing signed by the mediator that states that the mediation is terminated, or words to that effect, which shall be consistent with Section 1121. (4) A party provides the mediator and the other mediation participants with a writing stating that the mediation is terminated, or words to that effect, which shall be consistent with Section

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1121. In a mediation involving more than two parties, the mediation may continue as to the remaining parties or be terminated in accordance with this section. (5) For 10 calendar days, there is no communication between the mediator and any of the parties to the mediation relating to the dispute. The mediator and the parties may shorten or extend this time by agreement. (b) For purposes of confidentiality under this chapter, if a mediation partially resolves a dispute, mediation ends when either of the following conditions is satisfied: (1) The parties execute a written settlement agreement that partially resolves the dispute. (2) An oral agreement that partially resolves the dispute is reached in accordance with Section 1118. (c) This section does not preclude a party from ending a mediation without reaching an agreement. This section does not otherwise affect the extent to which a party may terminate a mediation. 1126. Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, and confidential under this chapter before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends. 1127. If a person subpoenas or otherwise seeks to compel a mediator to testify or produce a writing, as defined in Section 250, and the court or other adjudicative body determines that the testimony or writing is inadmissible under this chapter, or protected from disclosure under this chapter, the court or adjudicative body making the determination shall award reasonable attorney's fees and costs to the mediator against the person seeking the testimony or writing. 1128. Any reference to a mediation during any subsequent trial is an irregularity in the proceedings of the trial for the purposes of Section 657 of the Code of Civil Procedure. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding, in whole or in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.

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2017 CALIFORNIA RULES OF COURT

RULE 10.781, COURT-RELATED ADR NEUTRALS ((a) Qualifications of mediators for general civil cases

Each superior court that makes a list of mediators available to litigants in general civil cases or that recommends, selects, appoints, or compensates mediators to mediate any general civil case pending in the court must establish minimum qualifications for the mediators eligible to be included on the court’s list or to be recommended, selected, appointed, or compensated by the court. A court that approves the parties’ agreement to use a mediator who is selected by the parties and who is not on the court’s list of mediators or that memorializes the parties’ agreement in a court order has not thereby recommended, selected, or appointed that mediator within the meaning of this rule. In establishing these qualifications, courts are encouraged to consider the Model Qualification Standards for Mediators in Court-Connected Mediation Programs for General Civil Cases issued by the Judicial Council staff.

(b) Lists of neutrals

If a court makes available to litigants a list of ADR neutrals, the list must contain, at a minimum, the following information concerning each neutral listed:

(1) The types of ADR services available from the neutral;

(2) The neutral’s resume, including his or her general education and ADR training and experience; and

(3) The fees charged by the neutral for each type of service.

(c) Requirements to be on lists

In order to be included on a court list of ADR neutrals, an ADR neutral must sign a statement or certificate agreeing to:

(1) Comply with all applicable ethics requirements and rules of court and;

(2) Serve as an ADR neutral on a pro bono or modest-means basis in at least one case per year, not to exceed eight hours, if requested by the court. The court must establish the eligibility requirements for litigants to receive, and the application process for them to request, ADR services on a pro bono or modest-means basis.

(d) Privilege to serve as a court-program neutral

Inclusion on a court list of ADR neutrals and eligibility to be recommended, appointed, or compensated by the court to serve as a neutral are privileges that are revocable and confer no vested right on the neutral.

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RULES OF CONDUCT FOR MEDIATORS IN COURT-CONNECTED MEDIATION PROGRAMS FOR CIVIL CASES Rule 3.850. Purpose and function

(a) Standards of conduct

The rules in this article establish the minimum standards of conduct for mediators in court-connected mediation programs for general civil cases. These rules are intended to guide the conduct of mediators in these programs, to inform and protect participants in these mediation programs, and to promote public confidence in the mediation process and the courts. For mediation to be effective, there must be broad public confidence in the integrity and fairness of the process. Mediators in court-connected programs are responsible to the parties, the public, and the courts for conducting themselves in a manner that merits that confidence.


(b) Scope and limitations

These rules are not intended to:

(1) Establish a ceiling on what is considered good practice in mediation or discourage efforts by courts, mediators, or others to educate mediators about best practices;

(2) Create a basis for challenging a settlement agreement reached in connection with mediation; or

(3) Create a basis for a civil cause of action against a mediator.


Rule 3.850 amended and renumbered effective January 1, 2007; adopted as rule 1620 effective January 1, 2003.

Rule 3.851. Application

(a) Circumstances applicable

The rules in this article apply to mediations in which a mediator:

(1) Has agreed to be included on a superior court's list or panel of mediators for general civil cases and is notified by the court or the parties that he or she has been selected to mediate a case within that court's mediation program; or

(2) Has agreed to mediate a general civil case pending in a superior court after being notified by the court or the parties that he or she was recommended, selected, or appointed by that court or will be compensated by that court to mediate a case within that court's mediation program. A mediator who is not on

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a superior court list or panel and who is selected by the parties is not "recommended, selected, or appointed" by the court within the meaning of this subdivision simply because the court approves the parties' agreement to use this mediator or memorializes the parties' selection in a court order.

(Subd (a) amended effective January 1, 2010; previously amended effective January 1, 2007, and January 1, 2009.)

(b) Application to listed firms

If a court's panel or list includes firms that provide mediation services, all mediators affiliated with a listed firm are required to comply with the rules in this article when they are notified by the court or the parties that the firm was selected from the court list to mediate a general civil case within that court's mediation program.

(Subd (b) amended effective July 1, 2007; previously amended effective January 1, 2007.)

(c) Time of applicability

Except as otherwise provided in these rules, the rules in this article apply from the time the mediator agrees to mediate a case until the end of the mediation in that case.


(d) Inapplicability to judges

The rules in this article do not apply to judges or other judicial officers while they are serving in a capacity in which they are governed by the Code of Judicial Ethics.


(e) Inapplicability to settlement conferences

The rules in this article do not apply to settlement conferences conducted under rule 3.1380.

(Subd (e) amended effective January 1, 2007.)

Rule 3.851 amended effective January 1, 2010; adopted as rule 1620.1 effective January 1, 2003; previously amended and renumbered effective January 1, 2007; previously amended effective July 1, 2007, and January 1, 2009.


Subdivision (d). Although these rules do not apply to them, judicial officers who serve as mediators in their courts' mediation programs are nevertheless encouraged to be familiar with and observe these rules when mediating, particularly the rules concerning subjects not covered in the Code of Judicial Ethics such as voluntary participation and self-determination.

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(1) "Mediation" means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.

(2) "Mediator" means a neutral person who conducts a mediation.

(3) "Participant" means any individual, entity, or group, other than the mediator taking part in a mediation, including but not limited to attorneys for the parties.

(4) "Party" means any individual, entity, or group taking part in a mediation that is a plaintiff, a defendant, a cross-complainant, a cross-defendant, a petitioner, a respondent, or an intervenor in the case.



The definition of "mediator" in this rule departs from the definition in Evidence Code section 1115(b) in that it does not include persons designated by the mediator to assist in the mediation or to communicate with a participant in preparation for the mediation. However, these definitions are applicable only to these rules of conduct and do not limit or expand mediation confidentiality under the Evidence Code or other law.

The definition of "participant" includes insurance adjusters, experts, and consultants as well as the parties and their attorneys.

Rule 3.853. Voluntary participation and self-determination

A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties. For this purpose a mediator must:

(1) Inform the parties, at or before the outset of the first mediation session, that any resolution of the dispute in mediation requires a voluntary agreement of the parties;

(2) Respect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and

(3) Refrain from coercing any party to make a decision or to continue to participate in the mediation.


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Voluntary participation and self-determination are fundamental principles of mediation that apply both to mediations in which the parties voluntarily elect to mediate and to those in which the parties are required to go to mediation in a mandatory court mediation program or by court order. Although the court may order participants to attend mediation, a mediator may not mandate the extent of their participation in the mediation process or coerce any party to settle the case.

After informing the parties of their choices and the consequences of those choices, a mediator can invoke a broad range of approaches to assist the parties in reaching an agreement without offending the principles of voluntary participation and self-determination, including (1) encouraging the parties to continue participating in the mediation when it reasonably appears to the mediator that the possibility of reaching an uncoerced, consensual agreement has not been exhausted and (2) suggesting that a party consider obtaining professional advice (for example, informing an unrepresented party that he or she may consider obtaining legal advice). Conversely, examples of conduct that violate the principles of voluntary participation and self-determination include coercing a party to continue participating in the mediation after the party has told the mediator that he or she wishes to terminate the mediation, providing an opinion or evaluation of the dispute in a coercive manner or over the objection of the parties, using abusive language, and threatening to make a report to the court about a party's conduct at the mediation.

Rule 3.854. Confidentiality

(a) Compliance with confidentiality law

A mediator must, at all times, comply with the applicable law concerning confidentiality.

(b) Informing participants of confidentiality

At or before the outset of the first mediation session, a mediator must provide the participants with a general explanation of the confidentiality of mediation proceedings.

(c) Confidentiality of separate communications; caucuses

If, after all the parties have agreed to participate in the mediation process and the mediator has agreed to mediate the case, a mediator speaks separately with one or more participants out of the presence of the other participants, the mediator must first discuss with all participants the mediator's practice regarding confidentiality for separate communications with the participants. Except as required by law, a mediator must not disclose information revealed in confidence during such separate communications unless authorized to do so by the participant or participants who revealed the information.

(d) Use of confidential information

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A mediator must not use information that is acquired in confidence in the course of a mediation outside the mediation or for personal gain.



Subdivision (a). The general law concerning mediation confidentiality is found in Evidence Code sections 703.5 and 1115-1128 and in cases interpreting those sections. (See, e.g., Foxgate Homeowners' Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1; Rinaker v. Superior Court (1998) 62 Cal.App.4th 155; and Gilbert v. National Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240.)

Rule 3.855. Impartiality, conflicts of interest, disclosure, and withdrawal

(a) Impartiality

A mediator must maintain impartiality toward all participants in the mediation process at all times.

(b) Disclosure of matters potentially affecting impartiality

(1) A mediator must make reasonable efforts to keep informed about matters that reasonably could raise a question about his or her ability to conduct the proceedings impartially, and must disclose these matters to the parties. These matters include:

(A) Past, present, and currently expected interests, relationships, and affiliations of a personal, professional, or financial nature; and

(B) The existence of any grounds for disqualification of a judge specified in Code of Civil Procedure section 170.1.

(2) A mediator's duty to disclose is a continuing obligation, from the inception of the mediation process through its completion. Disclosures required by this rule must be made as soon as practicable after a mediator becomes aware of a matter that must be disclosed. To the extent possible, such disclosures should be made before the first mediation session, but in any event they must be made within the time required by applicable court rules or statutes.


(c) Proceeding if there are no objections or questions concerning impartiality

Except as provided in (f), if, after a mediator makes disclosures, no party objects to the mediator and no participant raises any question or concern about the mediator's ability to conduct the mediation impartially, the mediator may proceed.


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(d) Responding to questions or concerns concerning impartiality

If, after a mediator makes disclosures or at any other point in the mediation process, a participant raises a question or concern about the mediator's ability to conduct the mediation impartially, the mediator must address the question or concern with the participants. Except as provided in (f), if, after the question or concern is addressed, no party objects to the mediator, the mediator may proceed.


(e) Withdrawal or continuation upon party objection concerning impartiality

In a two-party mediation, if any party objects to the mediator after the mediator makes disclosures or discusses a participant's question or concern regarding the mediator's ability to conduct the mediation impartially, the mediator must withdraw. In a mediation in which there are more than two parties, the mediator may continue the mediation with the nonobjecting parties, provided that doing so would not violate any other provision of these rules, any law, or any local court rule or program guideline.

(f) Circumstances requiring mediator recusal despite party consent

Regardless of the consent of the parties, a mediator either must decline to serve as mediator or, if already serving, must withdraw from the mediation if:

(1) The mediator cannot maintain impartiality toward all participants in the mediation process; or

(2) Proceeding with the mediation would jeopardize the integrity of the court or of the mediation process.



Subdivision (b). This subdivision is intended to provide parties with information they need to help them determine whether a mediator can conduct the mediation impartially. A mediator's overarching duty under this subdivision is to make a "reasonable effort" to identify matters that, in the eyes of a reasonable person, could raise a question about the mediator's ability to conduct the mediation impartially, and to inform the parties about those matters. What constitutes a "reasonable effort" to identify such matters varies depending on the circumstances, including whether the case is scheduled in advance or received on the spot, and the information about the participants and the subject matter that is provided to the mediator by the court and the parties.

The interests, relationships, and affiliations that a mediator may need to disclose under (b)(1)(A) include: (1) prior, current, or currently expected service as a mediator in another mediation involving any of the participants in the present mediation; (2) prior, current, or

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currently expected business relationships or transactions between the mediator and any of the participants; and (3) the mediator's ownership of stock or any other significant financial interest involving any participant in the mediation. Currently expected interests, relationships, and affiliations may include, for example, an intention to form a partnership or to enter into a future business relationship with one of the participants in the mediation.

Although (b)(1) specifies interests, relationships, affiliations, and matters that are grounds for disqualification of a judge under Code of Civil Procedure section 170.1, these are only examples of common matters that reasonably could raise a question about a mediator's ability to conduct the mediation impartially and, thus, must be disclosed. The absence of particular interests, relationships, affiliations, and section 170.1 matters does not necessarily mean that there is no matter that could reasonably raise a question about the mediator's ability to conduct the mediation impartially. A mediator must make determinations concerning disclosure on a case-by-case basis, applying the general criteria for disclosure under (b)(1).

Attorney mediators should be aware that under the section 170.1 standard, they may need to make disclosures when an attorney in their firm is serving or has served as a lawyer for any of the parties in the mediation. Section 170.1 does not specifically address whether a mediator must disclose when another member of the mediator's dispute resolution services firm is providing or has provided services to any of the parties in the mediation. Therefore, a mediator must evaluate such circumstances under the general criteria for disclosure under (b)(1)-that is, is it a matter that, in the eyes of a reasonable person, could raise a question about the mediator's ability to conduct the mediation impartially?

If there is a conflict between the mediator's obligation to maintain confidentiality and the mediator's obligation to make a disclosure, the mediator must determine whether he or she can make a general disclosure of the circumstance without revealing any confidential information, or must decline to serve.

Rule 3.856. Competence

(a) Compliance with court qualifications

A mediator must comply with experience, training, educational, and other requirements established by the court for appointment and retention.

(b) Truthful representation of background

A mediator has a continuing obligation to truthfully represent his or her background to the court and participants. Upon a request by any party, a mediator must provide truthful information regarding his or her experience, training, and education.

(c) Informing court of public discipline and other matters

A mediator must also inform the court if:

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(1) Public discipline has been imposed on the mediator by any public disciplinary or professional licensing agency;

(2) The mediator has resigned his or her membership in the State Bar or another professional licensing agency while disciplinary or criminal charges were pending;

(3) A felony charge is pending against the mediator;

(4) The mediator has been convicted of a felony or of a misdemeanor involving moral turpitude; or

(5) There has been an entry of judgment against the mediator in any civil action for actual fraud or punitive damages.

(d) Assessment of skills; withdrawal

A mediator has a continuing obligation to assess whether or not his or her level of skill, knowledge, and ability is sufficient to conduct the mediation effectively. A mediator must decline to serve or withdraw from the mediation if the mediator determines that he or she does not have the level of skill, knowledge, or ability necessary to conduct the mediation effectively.



Subdivision (d). No particular advanced academic degree or technical or professional experience is a prerequisite for competence as a mediator. Core mediation skills include communicating clearly, listening effectively, facilitating communication among all participants, promoting exploration of mutually acceptable settlement options, and conducting oneself in a neutral manner.

A mediator must consider and weigh a variety of issues in order to assess whether his or her level of skill, knowledge, and ability is sufficient to make him or her effective in a particular mediation. Issues include whether the parties (1) were involved or had input in the selection of the mediator; (2) had access to information about the mediator's background or level of skill, knowledge, and ability; (3) have a specific expectation or perception regarding the mediator's level of skill, knowledge, and ability; (4) have expressed a preference regarding the style of mediation they would like or expect; or (5) have expressed a desire to discuss legal or other professional information, to hear a personal evaluation of or opinion on a set of facts as presented, or to be made aware of the interests of persons who are not represented in mediation.

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Rule 3.857. Quality of mediation process

(a) Diligence

A mediator must make reasonable efforts to advance the mediation in a timely manner. If a mediator schedules a mediation for a specific time period, he or she must keep that time period free of other commitments.

(b) Procedural fairness

A mediator must conduct the mediation proceedings in a procedurally fair manner. "Procedural fairness" means a balanced process in which each party is given an opportunity to participate and make uncoerced decisions. A mediator is not obligated to ensure the substantive fairness of an agreement reached by the parties.

(c) Explanation of process

In addition to the requirements of rule 3.853 (voluntary participation and self-determination), rule 3.854(a) (confidentiality), and (d) of this rule (representation and other professional services), at or before the outset of the mediation the mediator must provide all participants with a general explanation of:

(1) The nature of the mediation process;

(2) The procedures to be used; and

(3) The roles of the mediator, the parties, and the other participants.


(d) Representation and other professional services

A mediator must inform all participants, at or before the outset of the first mediation session, that during the mediation he or she will not represent any participant as a lawyer or perform professional services in any capacity other than as an impartial mediator. Subject to the principles of impartiality and self-determination, a mediator may provide information or opinions that he or she is qualified by training or experience to provide.

(e) Recommending other services

A mediator may recommend the use of other services in connection with a mediation and may recommend particular providers of other services. However, a mediator must disclose any related personal or financial interests if recommending the services of specific individuals or organizations.

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(f) Nonparticipants' interests

A mediator may bring to the attention of the parties the interests of others who are not participating in the mediation but who may be affected by agreements reached as a result of the mediation.

(g) Combining mediation with other ADR processes

A mediator must exercise caution in combining mediation with other alternative dispute resolution (ADR) processes and may do so only with the informed consent of the parties and in a manner consistent with any applicable law or court order. The mediator must inform the parties of the general natures of the different processes and the consequences of revealing information during any one process that might be used for decision making in another process, and must give the parties the opportunity to select another neutral for the subsequent process. If the parties consent to a combination of processes, the mediator must clearly inform the participants when the transition from one process to another is occurring.

(h) Settlement agreements

Consistent with (d), a mediator may present possible settlement options and terms for discussion. A mediator may also assist the parties in preparing a written settlement agreement, provided that in doing so the mediator confines the assistance to stating the settlement as determined by the parties.

(Subd (h) amended effective January 1, 2007.)

(i) Discretionary termination and withdrawal

A mediator may suspend or terminate the mediation or withdraw as mediator when he or she reasonably believes the circumstances require it, including when he or she suspects that:

(1) The mediation is being used to further illegal conduct;

(2) A participant is unable to participate meaningfully in negotiations; or

(3) Continuation of the process would cause significant harm to any participant or a third party.

(j) Manner of withdrawal

When a mediator determines that it is necessary to suspend or terminate a mediation or to withdraw, the mediator must do so without violating the obligation of confidentiality and in a manner that will cause the least possible harm to the participants.


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Subdivision (c). The explanation of the mediation process should include a description of the mediator's style of mediation.

Subdivision (d). Subject to the principles of impartiality and self-determination, and if qualified to do so, a mediator may (1) discuss a party's options, including a range of possible outcomes in an adjudicative process; (2) offer a personal evaluation of or opinion on a set of facts as presented, which should be clearly identified as a personal evaluation or opinion; or (3) communicate the mediator's opinion or view of what the law is or how it applies to the subject of the mediation, provided that the mediator does not also advise any participant about how to adhere to the law or on what position the participant should take in light of that opinion.

One question that frequently arises is whether a mediator's assessment of claims, defenses, or possible litigation outcomes constitutes legal advice or the practice of law. Similar questions may arise when accounting, architecture, construction, counseling, medicine, real estate, or other licensed professions are relevant to a mediation. This rule does not determine what constitutes the practice of law or any other licensed profession. A mediator should be cautious when providing any information or opinion related to any field for which a professional license is required, in order to avoid doing so in a manner that may constitute the practice of a profession for which the mediator is not licensed, or in a manner that may violate the regulations of a profession that the mediator is licensed to practice. A mediator should exercise particular caution when discussing the law with unrepresented parties and should inform such parties that they may seek independent advice from a lawyer.

Subdivision (i). Subdivision (i)(2) is not intended to establish any new responsibility or diminish any existing responsibilities that a mediator may have, under the Americans With Disabilities Act or other similar law, to attempt to accommodate physical or mental disabilities of a participant in mediation.

Rule 3.860. Attendance sheet and agreement to disclosure

(a) Attendance sheet

In each mediation to which these rules apply under rule 3.851(a), the mediator must request that all participants in the mediation complete an attendance sheet stating their names, mailing addresses, and telephone numbers; retain the attendance sheet for at least two years; and submit it to the court on request.


(b) Agreement to disclosure

The mediator must agree, in each mediation to which these rules apply under rule 3.851(a), that if an inquiry or a complaint is made about the conduct of the mediator,

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mediation communications may be disclosed solely for purposes of a complaint procedure conducted pursuant to rule 3.865 to address that complaint or inquiry.

(Subd (b) amended effective January 1, 2011; previously amended effective January 1, 2007.)

Rule 3.860 amended effective January 1, 2011; adopted as rule 1621 effective January 1, 2006; previously amended and renumbered effective January 1, 2007.

Article 3. Requirements for Addressing Complaints About Court-Program Mediators Rule 3.865. Application and purpose (a) Application

The rules in this article apply to each superior court that makes a list of mediators available to litigants in general civil cases or that recommends, selects, appoints, or compensates a mediator to mediate any general civil case pending in that court. A court that approves the parties' agreement to use a mediator who is selected by the parties and who is not on the court's list of mediators or that memorializes the parties' agreement in a court order has not thereby recommended, selected, or appointed that mediator within the meaning of this rule.

(Subd (a) amended and lettered effective January 1, 2010; previously adopted as part of unlettered subd effective July 1, 2009; effective date extended to January 1, 2010.)

(b) Purpose

These rules are intended to promote the resolution of complaints that mediators in court-connected mediation programs for civil cases may have violated a provision of the rules of conduct for such mediators in article 2. They are intended to help courts promptly resolve any such complaints in a manner that is respectful and fair to the complainant and the mediator and consistent with the California mediation confidentiality statutes.

(Subd (b) lettered effective January 1, 2010; previously adopted as part of unlettered subd effective July 1, 2009; effective date extended to January 1, 2010.)

Rule 3.865 amended effective January 1, 2010; adopted effective July 1, 2009, effective date extended to January 1, 2010.


As used in this article, complaint means a written communication presented to a court's complaint coordinator indicating that a mediator may have violated a provision of the rules of conduct for mediators in article 2.

Complaints about mediators are relatively rare. To ensure the quality of court mediation panels and public confidence in the mediation process and the courts, it is, nevertheless, important to ensure that any complaints that do arise are resolved through procedures

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that are consistent with California mediation confidentiality statutes (Evid C, §§ 703.5 and 1115 et seq.), as well as fair and respectful to the interested parties.

The requirements and procedures in this article do not abrogate or limit a court's inherent or other authority, in its sole and absolute discretion, to determine who may be included on or removed from a court list of mediators; to approve or revoke a mediator's eligibility to be recommended, selected, appointed, or compensated by the court; or to follow other procedures or take other actions to ensure the quality of mediators who serve in the court's mediation program in contexts other than when addressing a complaint. The failure to follow a requirement or procedure in this article will not invalidate any action taken by the court in addressing a complaint.



(1) "The rules of conduct" means rules 3.850-3.860 of the California Rules of Court in article 2.

(2) "Court-program mediator" means a person subject to the rules of conduct under rule 3.851.

(3) "Inquiry" means an unwritten communication presented to the court's complaint coordinator indicating that a mediator may have violated a provision of the rules of conduct.

(4) "Complaint" means a written communication presented to the court's complaint coordinator indicating that a mediator may have violated a provision of the rules of conduct.

(5) "Complainant" means the person who makes or presents a complaint.

(6) "Complaint coordinator" means the person designated by the presiding judge under rule 3.867(a) to receive complaints and inquiries about the conduct of mediators.

(7) "Complaint committee" means a committee designated or appointed to investigate and make recommendations concerning complaints under rule 3.869(d)(2).

(8) "Complaint procedure" means a procedure for presenting, receiving, reviewing, responding to, investigating, and acting on any inquiry or complaint.

(9) "Complaint proceeding" means all of the proceedings that take place as part of a complaint procedure concerning a specific inquiry or complaint.

(10) "Mediation communication" means any statement that is made or any writing that is prepared for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation, as defined in Evidence Code section 1115, and includes any communications, negotiations, and settlement discussions between participants in the course of a mediation or a mediation consultation.

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Paragraph (2). Under rule 3.851, the rules of conduct apply when a mediator, or a firm with which a mediator is affiliated, has agreed to be included on a superior court's list or panel of mediators for general civil cases and is notified by the court or the parties that he or she has been selected to mediate a case within that court's mediation program or when a mediator has agreed to mediate a general civil case after being notified that he or she was recommended, selected, or appointed by a court, or will be compensated by a court, to mediate a case within a court's mediation program.

Paragraphs (3) and (4). The distinction between "inquiries" and "complaints" is significant because some provisions of this article apply only to complaints (i.e., written communications presented to the court's complaint coordinator indicating that a mediator may have violated a provision of the rules of conduct) and not to inquiries.

Rule 3.867. Complaint coordinator

(a) Designation of the complaint coordinator

The presiding judge must designate a person who is knowledgeable about mediation to serve as the complaint coordinator.

(Subd (a) amended and lettered effective July 1, 2009, effective date extended to January 1, 2010; adopted as unlettered subd effective January 1, 2006.)

(b) Identification of the complaint coordinator

The court must make the complaint coordinator's identity and contact information readily accessible to litigants and the public.

(Subd (b) adopted effective July 1, 2009, effective date extended to January 1, 2010.)



The alternative dispute resolution program administrator appointed under rule 10.783(a) may also be appointed as the complaint coordinator if that person is knowledgeable about mediation.

Rule 3.868. Complaint procedure required

Each court to which this article applies under rule 3.865 must establish a complaint procedure by local rule of court that is consistent with this article.

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Rule 3.868 amended and renumbered effective July 1, 2009, effective date extended to January 1, 2010; adopted as rule 1622 effective January 1, 2003; previously amended effective January 1, 2006; previously amended and renumbered as rule 3.865 effective January 1, 2007.

Rule 3.869. General requirements for complaint procedures and complaint proceedings

(a) Submission and referral of inquiries and complaints to the complaint coordinator

All inquiries and complaints should be submitted or referred to the complaint coordinator.

(b) Acknowledgment of complaint

The complaint coordinator must send the complainant a written acknowledgment that the court has received the complaint.

(c) Preliminary review and disposition of complaints

The complaint coordinator must conduct a preliminary review of all complaints to determine whether the complaint can be informally resolved or closed, or whether the complaint warrants investigation.

(d) Procedure for complaints not resolved through the preliminary review

The following procedures are required only if a complaint is not resolved or closed through the preliminary review.

(1) Mediator's notice and opportunity to respond

The mediator must be given notice of the complaint and an opportunity to respond.

(2) Investigation and recommendation

(A) Except as provided in (B), the complaint must be investigated and a recommendation concerning court action on the complaint must be made by either an individual who has experience as a mediator and who is familiar with the rules of conduct stated in article 2 or a complaint committee that has at least one such individual as a member.

(B) A court with eight or fewer authorized judges may waive the requirement in (A) for participation by an individual who has experience as a mediator in conducting the investigation and making the recommendation if the court cannot find a suitable qualified individual to perform the functions described in (A) or for other grounds of hardship.

(3) Final decision

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The final decision on the complaint must be made by the presiding judge or his or her designee, who must not be the complaint coordinator or an individual who investigated the complaint before its submission for final decision.

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(e) Notice of final action

(1) The court must send the complainant notice of the final action taken by the court on the complaint.

(2) If the complaint was not closed during the preliminary review, the court must send notice of the final action to the mediator.

(f) Promptness

The court must process complaints promptly at all stages.

(g) Records of complaints

The court should maintain sufficient information about each complaint and its disposition to identify any history or patterns of complaints submitted under these rules.



Judicial Council staff have developed model local rules that satisfy the requirements of this rule. These model local rules were developed with input from judicial officers, court administrators, alternative dispute resolution (ADR) program administrators, court-program mediators, and public commentators and are designed so that they can be readily adapted to the circumstances of individual courts and specific complaints. Courts are encouraged to adopt rules that follow the model rules, to the extent feasible. Courts can obtain copies of these model rules from the Judicial Council's civil ADR program staff.

Subdivision (a). Coordination of inquiries and complaints by a person knowledgeable about mediation is important to help ensure that the requirements of this article are followed and that mediation confidentiality is preserved.

Subdivision (c). Courts are encouraged to resolve inquiries and complaints about mediators using the simplest, least formal procedures that are appropriate under the circumstances, provided that they meet the requirements stated in this article.

Most complaints can be appropriately resolved during the preliminary review stage of the complaint process, through informal discussions between or among the complaint coordinator, the complainant, and the mediator. Although complaint coordinators are not required to communicate with the mediator during the preliminary review, they are encouraged to consider doing so. For example, some complaints may arise from a misunderstanding of the mediator's role or from behavior that would not violate the standards of conduct. These types of complaints might appropriately be addressed by providing the complainant with additional information or by informing the mediator that certain behavior was upsetting to a mediation participant.

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The circumstances under which a complaint coordinator might informally resolve or close a complaint include, for example, when (1) the complaint is withdrawn; (2) no violation of the rules of conduct appears to have occurred; (3) the alleged violation of the rules of conduct is very minor and the mediator has provided an acceptable explanation or response; and (4) the complainant, the mediator, and the complaint coordinator have agreed on a resolution. In determining whether to close a complaint, the complaint coordinator might also consider whether there are or have been other complaints about the mediator.

Subdivision (d). At the investigation and recommendation stage, all courts are encouraged to consider using a complaint committee comprised of members with a variety of backgrounds, including at least one person with experience as a mediator, to investigate and make recommendations concerning those rare complaints that are not resolved during the preliminary review.

Courts are also encouraged to have a judicial officer who is knowledgeable about mediation, or a committee that includes another person who is knowledgeable about mediation, make the final decision on complaints that are not resolved through the preliminary review. Rule 3.870. Permissible court actions on complaints

After an investigation has been conducted, the presiding judge or his or her designee may do one or more of the following:

(1) Direct that no action be taken on the complaint;

(2) Counsel, admonish, or reprimand the mediator;

(3) Impose additional training requirements as a condition of the mediator remaining on the court's panel or list;

(4) Suspend the mediator from the court's panel or list or otherwise temporarily prohibit the mediator from receiving future mediation referrals from the court; or

(5) Remove the mediator from the court's panel or list or otherwise prohibit the mediator from receiving future mediation referrals from the court.



This rule does not abrogate or limit any existing legal right or duty of the court to take other actions, including interim suspension of a mediator pending final action by the court on a complaint.

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Rule 3.871. Confidentiality of complaint proceedings, information, and records

(a) Intent

This rule is intended to:

(1) Preserve the confidentiality of mediation communications as required by Evidence Code sections 1115-1128;

(2) Promote cooperation in the reporting, investigation, and resolution of complaints about court-program mediators; and

(3) Protect mediators against damage to their reputations that might result from the disclosure of unfounded complaints against them.

(Subd (a) amended effective July 1, 2009, effective date extended to January 1, 2010; previously amended effective January 1, 2007.)

(b) Preserving the confidentiality of mediation communications

All complaint procedures and complaint proceedings must be designed and conducted in a manner that preserves the confidentiality of mediation communications, including but not limited to the confidentiality of any communications between the mediator and individual mediation participants or subgroups of mediation participants.

(Subd (b) amended effective July 1, 2009, effective date extended to January 1, 2010.)

(c) Confidentiality of complaint proceedings

All complaint proceedings must occur in private and must be kept confidential. No information or records concerning the receipt, investigation, or resolution of an inquiry or a complaint may be open to the public or disclosed outside the course of the complaint proceeding except as provided in (d) or as otherwise required by law.

(Subd (c) amended effective July 1, 2009, effective date extended to January 1, 2010; previously amended effective January 1, 2007.)

(d) Authorized disclosures

After the decision on a complaint, the presiding judge, or a person whom the presiding judge designates to do so, may authorize the public disclosure of information or records concerning the complaint proceeding that do not reveal any mediation communications. The disclosures that may be authorized under this subdivision include the name of a mediator against whom action has been taken under rule 3.870, the action taken, and the general basis on which the action was taken. In determining whether to authorize the disclosure of information or records under this subdivision, the presiding judge or the designee should consider the purposes of the confidentiality of complaint proceedings stated in (a)(2) and (a)(3).

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(Subd (d) amended effective July 1, 2009, effective date extended to January 1, 2010; previously amended effective January 1, 2007.)

(e) Disclosures required by law

In determining whether the disclosure of information or records concerning a complaint proceeding is required by law, courts should consider the purposes of the confidentiality of complaint proceedings stated in (a). If it appears that the disclosure of information or records concerning a complaint proceeding that would reveal mediation communications is required by law, before the information or records are disclosed, notice should be given to any person whose mediation communications may thereby be revealed.

(Subd (e) amended effective July 1, 2009, effective date extended to January 1, 2010; previously amended effective January 1, 2007.)



Under rule 3.866(9), the complaint proceedings covered by this rule include proceedings to address inquiries as well as complaints (i.e., to unwritten as well as written communications indicating that a mediator may have violated a provision of the rules of conduct).

Subdivision (a). See Evidence Code sections 1115 and 1119 concerning the scope and types of mediation communications protected by mediation confidentiality. Rule 3.871 is intended to supplement the confidentiality of mediation communications established by the Evidence Code by ensuring that disclosure of information or records about a complaint proceeding does not reveal confidential mediation communications. Rule 3.871 is not intended to supersede or abrogate the confidentiality of mediation communications established by the Evidence Code.

Subdivision (b). Private meetings, or "caucuses," between a mediator and subgroups of participants are common in court-connected mediations, and it is frequently understood that these communications will not be disclosed to other participants in the mediation. (See Cal. Rules of Court, rule 3.854(c).) It is important to protect the confidentiality of these communications in complaint proceedings so that one participant in the mediation does not learn what another participant discussed in confidence with the mediator without the consent of the participants in the caucus communication.

Subdivisions (c)-(e). The provisions of (c)-(e) that authorize the disclosure of information and records related to complaint proceedings do not create any new exceptions to mediation confidentiality. Although public disclosure of information and records about complaint proceedings that do not reveal mediation communications may be authorized under (d), information and records that would reveal mediation communications may be

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publicly disclosed only as required by law (e.g., in response to a subpoena or court order) and consistent with the statutes and case law governing mediation confidentiality. A person who is knowledgeable about California's mediation confidentiality laws should determine whether the disclosure of mediation communications is required by law.

Evidence Code sections 915 and 1040 establish procedures and criteria for deciding whether information acquired in confidence by a public employee in the course of his or her duty is subject to disclosure. These sections may be applicable or helpful in determining whether the disclosure of information or records acquired by judicial officers, court staff, and other persons in the course of a complaint proceeding is required by law or should be authorized in the discretion of the presiding judge.

Rule 3.872. Disqualification from subsequently serving as an adjudicator

A person who has participated in a complaint proceeding or otherwise received information about the substance of a complaint, other than information that is publicly disclosed under rule 3.871(d), must not subsequently hear or determine any contested issue of law, fact, or procedure concerning the dispute that was the subject of the underlying mediation or any other dispute that arises from the mediation as a judge, an arbitrator, a referee, or a juror, or in any other adjudicative capacity, in any court action or proceeding.



Persons who participated in a complaint proceeding are prohibited from subsequently adjudicating the dispute that was the subject of the underlying mediation or any other dispute that arises from the mediation because they may have learned of confidential mediation communications that were disclosed in the complaint proceeding or may have been influenced by what transpired in that proceeding. Because the information that can be disclosed publicly under rule 3.871(d) is limited and excludes mediation communications, it is unnecessary to disqualify persons who received only publicly disclosed information from subsequently adjudicating the dispute.

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RULES OF THE STATE BAR OF CALIFORNIA

TITLE 2. RIGHTS AND RESPONSIBILITIES OF MEMBERS DIVISION 3. MEMBER STATUS

Rule 2.30 Inactive membership

(A) Any member not under suspension, who does not engage in any of the activities listed in (B) in California, may, upon written request, be enrolled as an inactive member. The Secretary may, in any case in which to do otherwise would work an injustice and subject to any direction of the board permit retroactive enrollment of inactive members.

(B) No member practicing law, or occupying a position in the employ of or rendering any legal service for an active member, or occupying a position wherein he or she is called upon in any capacity to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law, shall be enrolled as an inactive member.

(C) Notwithstanding (A) and (B) a member serving for a court or any other governmental agency as a referee, hearing officer, court commissioner, temporary judge, arbitrator, mediator or in another similar capacity is eligible for enrollment as an inactive member if he or she does not otherwise engage in any of the activities listed in (B) or hold himself or herself out as being entitled to practice law.

Rule 2.30 adopted effective August 19, 2006; amended effective July 20, 2007.

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SUMMARY OF CALIFORNIA CASE LAW By Dana Curtis and Daniel Bowling1

CASE LAW MEDIATION CONFIDENTIALITY CALIFORNIA SUPREME COURT Foxgate v. Bramalea, (2001) 26 Cal. 4th 1 Plaintiff in a construction dispute moved for sanctions against defendant on the ground that defendant had failed to participate in good faith when, among other things, the attorney appeared late and failed to bring insurance carriers and experts, as ordered by the court-appointed mediator. The Court of Appeal created an exception to Evid C section 1119 for information “reasonably necessary to describe sanctionable conduct and place that conduct in context.” The Supreme Court reversed and concluded there were “no exceptions” to mediation confidentiality of mediation communications. The court held that the Evid C provisions governing mediation “unequalifiedly bar … disclosure of communications made during mediation absent express statutory exception.” While the Evid C allows a party to reveal noncommunicative “conduct” of a participant in mediation, it precludes disclosure of mediation “communications” and a mediator’s assessment of a participant’s conduct. The court held that whether exceptions to confidentiality should be made to encourage good faith participation is a question for the Legislature.

Rojas v. Superior Court (2004) 33 Cal. 4th 407 In a construction defect lawsuit brought by tenants alleging they were damaged from mold in their apartment complex, tenants moved to compel the production of documents and photographs exchanged in a prior mediation between the owner of the apartment and the construction company. The trial court narrowly construed Evid C Code section 1119(b), which precludes discovery or admission of writings prepared in connection with a mediation, and denied the motion discovery. Applying attorney work product principles, the Court of Appeal held that this statute did not protect “nonderivative” material such as raw data, photos and witness statements and that derivative material, such as charts, compilations and expert reports, were discoverable on a showing of good cause. The Supreme Court reversed, holding that the statute was to be enforced in accordance with its plain terms. The court held that by enacting Evid C Code section 1119, the Legislature specifically intended to extend protection to all types of nonderivative

1 For a survey of mediation-related litigation in the U.S., compiled by Professors James Coben and Peter Thompson, see http://www.hamline.edu/law/adr/ (and click on the Mediation Case Law Project link.

Copyright Dana Curtis and Daniel Bowling, 2012. All rights reserved.

http://www.hamline.edu/law/adr/

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material, including raw data, photographs and witness statements, if “prepared for the purpose of, in the course of, or pursuant to, a mediation....” Reversing the Court of Appeal, the Supreme Court concluded there was no evidence of a legislative intent to create a “good cause” exception to this protection. The court held there was no good cause exception for derivative material, because no judicially created exception to section 1119 was needed to carry out legislative intent or avoid an absurd result. Fair v. Bakhtiari (2006) 40 Cal. 4th 189 At the conclusion of mediation, the parties signed a document entitled “Settlement Terms,” in which the final provision stated, “Any and all disputes subject to JAMS arbitration rules.” Shortly thereafter they filed a report informing the court the case had settled in mediation. The parties were unable to conclude the formal settlement agreement, and plaintiff filed a motion to compel arbitration under the terms of the settlement memorandum. The trial court held the term sheet inadmissible and denied the motion to compel. The Court of Appeal reversed, holding that the term sheet was admissible because the arbitration provision constituted “words to [the] effect” that the settlement terms were “enforceable or binding” under Evid C section 1123(b). The Supreme Court reversed, holding the “terms of agreement” inadmissible. Balancing the requirements of flexibility and clarity, without eroding the confidentiality that is “essential to effective mediation,” the court concluded that to fit within the “words to that effect” provision of section 1123(b) a writing must “directly express the parties’ agreement to be bound by the document they sign.” The agreement must “make clear that it reflects an agreement and is not simply a memorandum of terms for inclusion in a future agreement.” While the writing need not be in finished form to be admissible, “it must be signed by the parties and include a direct statement to the effect that it is enforceable or binding.” Simmons v. Ghaderi (2008) 44 Cal. 4th 570 In Simmons, the California Supreme Court interpreted the mediation confidentiality statutes for the fourth time and held, consistent with Foxgate Homeowners’ Assn., Inc v. Bramalea California, Inc., that exceptions to mediation confidentiality must be enacted by the Legislature, not created by the judiciary. Dr. Ghaderi, the defendant in a medical malpractice case, attended mediation with her insurer’s claim specialist, the carrier’s attorney and Cumis counsel. At the session, Dr. Ghaderi signed a consent form authorizing her insurer to negotiate a settlement with a $125,000 limit. The form provided that her consent only could be revoked in writing and would remain in force until the revocation was received at the insurer’s offices. During the mediation session, the claims specialist agreed to settle the matter for $125,000, in exchange for a dismissal with prejudice and a waiver of costs. Plaintiffs accepted orally. The mediator put the essential terms into a document for the parties’ signatures. Dr. Ghaderi, who had been waiting in another room with Cumis counsel, declared she was revoking her consent. She and her representatives left without signing the document. One week after the mediation session, she sent her insurer a letter formally revoking her consent to settle.

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After failing to enforce the oral settlement under CCP section 664.6, because Dr. Ghaderi had not signed the settlement document, plaintiffs sued for breach of the oral settlement agreement. During discovery and her motion for summary adjudication, Dr. Ghaderi did not dispute the events that had occurred during the mediation session. In fact, she confirmed them in a declaration to support her argument that no enforceable contract was formed during mediation. However, 15 months after the mediation session she asserted that the mediation confidentiality statutes precluded plaintiffs from proving the existence of an oral settlement agreement. At trial, plaintiffs submitted, over objection, the signed consent form, the settlement agreement prepared by the mediator, Dr. Ghaderi’s written revocation, her deposition testimony and that of the insurer’s claims specialist, and a declaration from the mediator. The trial court held there was a valid enforceable oral contract before Dr. Ghaderi withdrew her consent. A Court of Appeal majority affirmed, holding further that, because Dr. Ghaderi had presented evidence of the occurrences at the mediation and had failed to object to plaintiff’s use of the facts during pretrial motions, she was estopped from asserting mediation confidentiality. In dissent, Justice Aldrich maintained that the majority’s focus on estoppel was “a veiled attempt at relabeling waiver as estoppel” and that a party cannot impliedly waive mediation confidentiality through litigation conduct. The Supreme Court agreed. The court noted that, except in cases of express waiver (e.g., Olam v Congress Mort. Co., 68 F.Supp.2d 1110 [N.D.Cal.1999]) or where due process is implicated (e.g., Rinaker v Superior Court (1988) 62 CA4th 464, 74 CR2d 464), it had been held that mediation confidentiality is to be strictly enforced. Id. at 582. The Supreme Court held that estoppel principles did not apply, either to contest jurisdiction, as in cases cited by plaintiffs, or equitably. 44 C4th at 584. The court also adopted the Court of Appeal conclusion in Eisendrath v. Superior Court (2003) 109 CA4th 351, 357, 134 CR2d 716, that mediation confidentiality cannot be impliedly waived by conduct and cited Evid C section 1122 that requires an express agreement by all persons who conduct or otherwise participate in mediation that confidentiality may be waived. Id. at 585–88. The court concluded (44 C4th at 588), “Both the clear language of the mediation statutes and our prior rulings support the preclusion of an implied waiver exception. The Legislature chose to promote mediation by ensuring confidentially rather than adopt a scheme to ensure good behavior in the mediation and litigation process. The mediation statutes provide clear and comprehensive rules reflecting that policy choice.” Cassel v. Superior Court (2011) 51 Cal. 4th 1132 The California Supreme Court, in its fifth decision concerning mediation confidentiality, determined the effect of the mediation confidentiality statutes on private discussions between a mediating client and attorneys who represented him in the mediation.

2 The Cassel opinion contains an excellent summary of the California decisions concerning mediation confidentiality.

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Acknowledging that its decision may compromise petitioner Michael Cassel’s (Cassel) ability to prove his claim of legal malpractice, the court held that evidence of private conversations among Cassel and his attorneys in preparation for and during mediation were confidential and therefore not discoverable or admissible, even for the purposes of proving a claim for malpractice. Id. at 137, citing Evid C section 1119(a). Cassel sued his attorneys, defendants and real parties in interest Wasserman, Comden, Casselman & Pearson, L.L.P. (WCCP), and members of the firm, including attorneys Wasserman and Casselman, for legal malpractice in conjunction with their representation of him in a business dispute. After the dispute settled in mediation for $1.25 million, Cassel filed a complaint alleging his lawyers coerced him to settle for an amount lower than he told them he would accept prior to the mediation. Before trial in the malpractice case, the lawyers moved to exclude evidence of private attorney-client discussions immediately preceding and during the mediation concerning mediation settlement strategies and the lawyers’ efforts to persuade Cassel to reach a settlement. The trial court granted the motion. The testimony the lawyers sought to exclude concerned Cassel’s claims that prior to mediation he and his lawyers agreed he would accept no less than $2 million to settle the case, but when the opposing party would pay no more than $1.25 million at the mediation, his lawyers coerced him to accept the low offer. Among the evidence Cassel sought to introduce were discussions in which his lawyers allegedly accused him of being “greedy” by holding out and pressed him to accept a low offer; threatened to abandon him before trial; misrepresented significant terms of the proposed settlement; falsely promised him to negotiate a side deal to make up for deficits in the settlement and to waive or discount legal fees if Cassel accepted the offer. Cassel eventually signed the settlement agreement, believing that, he claimed, he had no other choice because he would not be able to find new counsel before trial. Citing mediation confidentiality statutes, the lawyers moved in limine to exclude evidence of all attorney-client communications related to the mediation, including private discussions occurring prior to and during the mediation. After examining Cassel’s deposition and hearing further testimony from Casselman, the trial court ruled that information about the conduct of the mediation session itself was protected by mediation confidentiality, as were all pre-mediation discussions between Cassel and the lawyers and private attorney-client communications during the mediation that took place outside the presence of the mediator. The court also ruled inadmissible, as communicative conduct, the act of a WCCP attorney in accompanying petitioner to the bathroom during the mediation. On the basis of Cassel’s petition in a writ of mandate proceeding, the Court of Appeal vacated the trial court’s order, holding that mediation confidentiality statutes do not extend to communications between mediation participants and their attorneys outside the presence of other participants in the mediation. The court concluded that a mediation disputant and the disputant’s lawyers are a single mediation “participant” for purposes of section 1122(a)(2) and, therefore, the lawyers could not block the Cassel’s disclosure of their

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communications by refusing, as a separate “participant,” to waive any mediation confidentiality that might otherwise apply. To conclude otherwise would unfairly allow the mediation confidentiality statutes to hamper a malpractice action by overriding the waiver of the attorney-client privilege provided by Evid C section 958 when a client sues lawyers for malpractice. In ruling on Cassel’s appeal, the Supreme Court first focused on the plain meaning of the mediation confidentiality statutes, beginning with Evid C section 1119, which sets forth the standard of admissibility for oral and written communications made during the mediation process, particularly Evid C section 1119(a), which states that “[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any . . . civil action . . .” (51 C4th at 123, emphasis added by court). The court interpreted this broad language to be evidence of the legislature’s intent to create expansive protection for communications made at any stage of the mediation, including those made before the session began or when speakers were physically removed from the mediation environment. Comparing Evid C section 1119 to its predecessor, Evid C section 1152, the court observed section 1119 to be more expansive than §1152, as it protects communications made “for the purpose of” mediation in addition to those “made during the course” of mediation. Based on the legislative history of §1119, the court declared that “[t]he obvious purpose of the expanded language is to ensure that the statutory protection extends beyond discussions carried out directly between the opposing parties to the dispute, or with the mediator, during the mediation proceedings themselves.” Without an explicit exception in the text, the plain meaning of Evid C section 1119 protects all communications, oral or written, made both in preparation for the mediation session and during the mediation session, including private discussions between mediation disputants and their attorneys, like those between Cassel and his lawyers. Cassel argued that mediation confidentiality should never apply to private attorney-client communications, because it is almost impossible to tell whether communications relate exclusively to mediation when they occur close in time to a mediation proceeding but in a broader litigation context. Id. at 137. The Court rejected this proposition on the basis that excluding all private attorney-client communications from the proviso of Evid C section 1119 “would simply engraft an exception that does not appear in the mediation confidentiality statutes themselves.” The court next looked to Evid C section 1122, which permits some participants to agree to disclosure of otherwise confidential communications in certain enumerated circumstances, and, in particular section 1122(a)(2), which permits disclosure of communications involving fewer than all of the mediation participants, if those participants expressly agree to disclosure, as long as “the communication, document, or writing does not disclose anything said or done . . . in the course of the mediation.” This exception evidences that the legislature anticipated that fewer than all participants may confer during a mediation session, and “[s]uch mediation-related communications plainly encompass those between a mediation disputant and the disputant’s counsel, even though these occur away from other mediation participants and reveal nothing

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about the mediation proceedings themselves.” Id. at 129. As such, the court held that they fall within the mediation confidentiality statutes unless section 1122(a)(2) applies because the parties agree otherwise, which the parties in the present case did not do. The court also rejected the Court of Appeal’s determination that the communications between Cassel and the lawyers fell outside the scope of mediation confidentiality statutes because the attorneys were not “parties” (or mediation disputants) or “participants.” The Supreme Court held that all participants to the mediation process were protected by the mediation confidentiality statutes, and therefore communications made between any participants were confidential, a conclusion supported by California Law Revision Commission comments to Evid C section 1119 suggesting even a passive observer is considered a participant and entitled to confidentiality protection, and section 1122(a)(1), providing “all participants, including not only the parties but also the mediator and other nonparties attending the mediation” may agree that otherwise confidential communications could be made discoverable. In addition, the court rejected Cassel’s argument that policy considerations supporting a client’s statutory privilege of confidentiality and right to waive it to introduce communications between attorney and client in legal malpractice actions pursuant to Evid C section 958 apply to permit disclosure that the mediation confidentiality statutes. Acknowledging that absent legislative intent to create an exception, courts may create judicial exceptions where due process interests are affected, or when following the plain meaning of the statute will produce a result that is so absurd as to be obviously contrary to the legislature’s presumed intent, the court concluded that no fundamental due process concerns were implicated by the mere loss of evidence pertinent to a civil lawsuit for damages flowing from legal malpractice, a conclusion supported by its decisions in Foxgate, Rojas, Fair, and Simmons. The court also noted that mediation confidentiality statutes do not create a privilege in favor of a single person, as does Evid C section 958, rather they reflect the intent of the legislature to promote the public policy of encouraging efficient resolution of disputes without litigation. Further, the court has consistently refused to find exceptions to mediation confidentiality merely to accommodate competing policy concerns, “even where the equities appeared to favor them.” Consistent with its previous opinions, the court held that according to the plain meaning of the text the mediation confidentiality statutes protect all communications between mediation disputants and their representative counsel. CALIFORNIA COURTS OF APPEAL Rinaker v. Superior Court (1998) 62 Cal. App. 4th 165 Two minors accused of vandalizing a car sought to compel the testimony in a juvenile delinquency proceeding of the person who had mediated in a civil harassment action brought against them by the victim. The minors claimed the victim admitted in the mediation that he did not see who committed the vandalism. The mediator objected to testifying, citing Evid C section 1119. The Court of Appeal held the mediator could be compelled to testify if it appeared the application of the Evid C would deprive the minors

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of their Constitutional right, in a juvenile delinquency proceeding, to due process (to cross-examine and impeach witnesses). This right took precedence over confidentiality of mediation. The Court of Appeal directed the juvenile court to hold an in camera hearing with the mediator “to weigh the ‘constitutionally based claim of need against the statutory privilege’ and determine whether …. [the mediator’s] testimony [was] necessary to ‘vindicate [the minors’ rights of confrontation.’” Eisendrath v. Superior Court (2003) 109 Cal. App. 4th 351 In the context of a dispute involving a marital settlement agreement, husband moved to correct spousal support provisions negotiated in mediation based on conversations during mediation but outside of sessions with the mediator. Wife waived mediation confidentiality and moved for a continuance to depose the mediator. Husband requested a protective order barring the mediator’s testimony. The trial court denied the protective order on the ground that husband impliedly waived confidentiality and ordered an in camera hearing to determine whether the mediator should be compelled to testify.

The Court of Appeal reversed, concluding confidentiality cannot be impliedly waived. Further, it was unnecessary to imply a waiver to avoid an unfair result, because the conversations on which husband based his motion were made in the course of and for the purpose of the mediation and were covered by the Evid C, even though they occurred outside mediator’s presence. Consequently, evidence of the conversations could not be admitted without express waivers by both parties, nor could the mediator’s testimony be taken absent waivers by the parties and the mediator. The mediator is incompetent to testify under Evid C section 703.5, and the court refused to find an exception. Unlike Rinaker, there was no Constitutional right at stake. The court also distinguished Olam, in which the mediator was asked to testify on a narrow issue peripheral to the agreement, whereas testimony sought in Eisendrath involved the very terms of the agreement.

Doe I v. Superior Court (2005) 132 Cal. App. 4th 1160 In a priest abuse case, the defendant priests had participated in mediation in which the church had submitted written summaries of its files concerning the priests, thereby conceding it had notice of the conduct of some of the priests. The priests moved the trial court for a protective order on the ground that disclosure would violate Evid C section 1122(a)(2), which allows a writing made in a mediation to be disclosed if it was prepared by or on behalf of fewer than all mediation participants, the participants expressly agree to disclosure and writing does not disclose anything said or done or any admission made in the course of mediation. The trial court granted the protective order because the proffers impermissibly disclosed admissions in mediation or revealed the diocese’s position as to priests.

The Court of Appeal upheld the trial court’s decision and enforced confidentiality to bar disclosure of the information, citing section 1122 (a)(2), and held that the Evid C prevents the disclosure of admissions by any party, even by the party who made them.

Kieturakis v. Kieturakis (2006) 138 Cal. App. 4th 56 The trial court denied wife’s motion to set aside a marital settlement agreement reached in mediation (and the judgment incorporating it) on grounds of fraud, duress and lack of disclosure. During the proceeding, wife had refused to waive confidentiality to allow husband to defend himself against the allegations and counter the presumption of undue

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influence attaching to unequal marital transactions. The trial court admitted evidence from mediation over wife’s and the mediator’s objections, thereby defeating her case.

The Court of Appeal held that presumption of undue influence in marital transactions must yield to policies favoring mediation and finality of judgment, but also concluded that any error in admitting the evidence from the mediation was harmless. Concluding that that husband should not have been made to bear the burden of proof on wife’s motion, the court held that the presumption of undue influence cannot be applied to a marital settlement agreement reached in mediation, since mediation involves voluntary participation and self-determination. Furthermore, the parties acknowledged in the agreement that no undue influence was exercised. Wimsatt v. Superior Court (Kausch), (2007) 152 Cal. App. 4th 137 Plaintiff and real party in interest Kausch sued Magaña, Cathcart & McCarthy and his Attorney William H. Wimsatt (“Magaña”) for legal malpractice in representing him in a personal injury lawsuit. Among other allegations, Kausch alleged Magaña breached its fiduciary duty by submitting an unauthorized settlement demand to the opposing party. Kausch learned of this potentially unauthorized act from a “confidential mediation brief” submitted to a mediator in the lawsuit. Magaña sought a writ of mandate compelling the trial court to vacate its order denying Magaña's application for a protective order and, instead, to enter an order that will protect “mediation-related” communications. Magaña contended three items were protected from disclosure by Evid C sections 1115, et seq.: (1) all mediation briefs; (2) e-mails sent the day before the mediation that quoted from a mediation brief; and (3) a communication made by Wimsatt to the personal injury defendants purportedly lowering Kausch's settlement demand. Magaña sought a protective in the trial court to seal this evidence. The trial court created an exception to mediation confidentiality by ruling, based upon Kausch's argument that Wimsatt's deposition testimony was perjurious because it was inconsistent with, and contrary to, other statements made by him, and ruled that “the [L]egislature did not intend confidentiality of mediation proceedings to be so complete as to shield perjury or inconsistent statements.” The Court of Appeal upheld in part and reversed in part the trial court’s ruling. Noting that mediation confidentiality is to be applied where the writing or statement would not have existed but for a mediation communication, negotiation or settlement discussion the court held that the briefs and the e-mails were protected by mediation confidentiality, but that Magaña did not meet its burden of proof with regard to the oral communication by Wimsatt. The court issued a writ of mandate directing the trial court to issue a protective order only with respect to the mediation briefs and the e-mails. Interestingly, the court admonished parties and lawyers to be wary of mediation confidentiality: “In light of the harsh and inequitable results of the mediation confidentiality statutes (Evid C, sections 1115, et seq.), such as those set out above, the parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute. If they do not intend to be bound by the mediation confidentiality statutes, then they should “’make [it] clear at the outset that something other than a mediation is intended.’ (Doe 1, supra, 132 Cal.App.4th at p. 1166.)”

http://web.lexis-nexis.com/research/buttonTFLink?_m=096ff57783632bb918e7c68fde3ffe29&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b152%20Cal.%20App.%204th%20137%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=168&_butInline=1&_butinfo=CAL.%20EVID.%20CODE%201115&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzz-zSkAA&_md5=c2edafc18a6641b60a8ffc1457f9c952

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Castenada v Department of Corrections (2013) 212 CA4th 1051, 151 CR3d 648 Plaintiff prevailed at trial based on allegations that defendant failed to provide appropriate medical care to plaintiff’s imprisoned relative. The Court of Appeal reversed. At trial plaintiff asserted that defendant was estopped from raising the issue of her failure to file a tort claim, basing her argument in part on evidence of conversations that occurred in mediation. In reversing, the court noted that plaintiff had not submitted any evidence in support of her estoppel claim, and registered “surpris[e]” that the trial court relied, in part, on evidence of “statements made, or discussions had, during mediation.” And, citing Simmons v Ghaderi (2008) 44 C4th 570, 580, 80 CR3d 83, the court held that “[S]tatements made during mediation and mediation materials are confidential not only during the mediation, but also after the mediation ends.”

Kurtin v Elieff (2013) 215 CA4th 455, 155 CR3d 573 Two parties in a lawsuit concerning real estate ventures resolved their dispute with a mediated settlement agreement requiring Elieff to buy out Kurtin’s interests in four installment payments. Elieff signed the agreement on behalf of himself and joint entities in which he held one-quarter interest. When the fourth payment was not paid, Kurtin sued to enforce the agreement. The trial court denied Kurtin’s request, finding the joint entities were not parties.

In his opposition to Kurtin’s writ petition, Elieff asserted he (Elieff) did not have authority to bind the joint entities; therefore, his interest alone could be subject to legal action. Ultimately, the parties, including the other members of the joint entities signed a settlement agreement in which they agreed to an arbitration limiting the authority of the arbitrator “to imply a reasonable term that the arbitrator finds consistent with the purpose and intent of this Settlement Agreement.” The arbitrator entered an award in favor of Kurtin for $24,411,433.86, but limited the right to foreclose to Elieff’s own interests in the joint entities.

Kurtin then sued Elieff and the joint entities for an accounting and to impose liability upon Elieff for misrepresenting his authority to bind the joint entities. Elieff sought to admit parol evidence of mediation discussions to clarify ambiguous provisions in the settlement agreement, and Kurtin moved to exclude. The trial court granted Kurtin’s motion. Ultimately, the jury awarded Kurtin $8 million in damages.

On appeal Elieff argued the court should have required Kurtin to drop his claim when he asserted mediation confidentiality, because absent the ability to introduce parol evidence of mediation discussions Elieff could not have a fair trial. He argued that as in malpractice cases, where otherwise confidential information received from the complaining client is admissible, he should either have been allowed to present evidence otherwise precluded by the mediation confidentiality to defend himself or Kurtin should have been required to drop his claims.

The court concluded otherwise and held that parol evidence in the form of mediation communications may not be introduced to interpret a mediated settlement agreement. The court noted that Elieff had used evidence from the mediation to clear up, in his favor, at least one ambiguity in the settlement agreement before trial in arbitration. Moreover,

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the court reasoned citing Cassel v Superior Court, supra, “if there is a price to be paid in fairness to preserve mediation confidentiality, the cases have required that it be paid by parties challenging, not defending, what transpired in the mediation.” Id. at 87.

In re Marriage of Daly & Oyster (2014) 228 CA4th 505, 175 CR3d 364 Daly filed for dissolution of marriage in 2005, but did not serve Oyster. In 2006, she filed a second dissolution petition and moved to have the stipulated judgment the parties reached in 2006 entered in both the dismissed and the new proceedings. She explained that she did not file it previously because she mistakenly thought the mediator would do so. Oyster argued that he thought the 2006 stipulated judgment memorialized merely the first round of negotiations, after which he would be given an opportunity to request modifications.

The trial court denied Daly’s motion to enter the 2006 judgment in both proceedings. At trial, Oyster objected to admission of the stipulated judgment based on Evid C §1119. The trial court overruled the objection, finding that the stipulated judgment constituted an enforceable marital settlement.

On appeal, Oyster argued the 2006 agreement was inadmissible under Evid C §1119. The court disagreed, holding that language in the agreement “clearly reflected the parties’ agreement that the stipulated judgment be subject to disclosure and be enforceable.” Id. Furthermore, the parties agreed the court would enforce the document, which it could not do unless admitted. Id. at 510–11.

Optional Capital, Inc. v DAS Corp. (2014) 222 CA4th 1388, 166 CR3d 705 In a lawsuit based on allegations of conversion and fraudulent conveyance following a mediated settlement agreement, defendant sought. to preclude evidence of events occurring in the mediation pursuant to Evid C §1119. The Court of Appeal held that plaintiff’s claims of tortious conduct were “not based upon statements made in the settlement conference, but upon wrongful conduct external to the . . . litigation settlement” (i.e., the wrongful conversion of plaintiff’s funds). Id. at 1403. Therefore, the evidence was clearly admissible.

Lappe v Superior Court (2014) 232 CA4th 774, 181 CR3d 510 Gilda and Murray Lappe entered into a mediated marital settlement agreement to resolve all issues related to their property and support, which was later incorporated into a stipulated judgment. They purported in their settlement to have exchanged financial disclosure declarations as required by the Family Code, although Gilda denies they did so. Shortly after entry of judgment, Gilda learned Murray had sold a company he founded during the marriage, Gilda’s community share of which she had relinquished to him for $10 million as part of their marital settlement. Murray received approximately $75 million from the sale.

Gilda filed an application to set aside the judgment on grounds of fraud and duress. In discovery, she requested the financial disclosure declarations Murray claimed to have exchanged prior to entry of judgment. Murray refused to produce the declarations, claiming Evid C §1119(b) precluded their admissibility as writings “prepared for the purpose of, in the course of, or pursuant to, a mediation.” Gilda moved to compel

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production, and the trial court denied the motion on mediation confidentiality grounds.

On appeal by writ petition, Gilda contended the mediation confidentiality statutes did not apply, because the financial disclosure declarations were prepared pursuant to and for the purpose of complying with the Family Code’s statutory mandate, not for mediation. The court agreed, reasoning that the final declarations were prepared and exchanged not pursuant to a mediation or to serve a party’s negotiation strategy, but pursuant to a statutory duty imposed by the Family Code to ensure that divorcing spouses would have full and accurate information upon which to base a fair and equitable division of assets. Lappe, supra, at 6.

Moreover, even if the parties’ financial disclosure documents were prepared for mediation, the court held, they were nevertheless admissible pursuant to Evid C §1120 as a writing that was otherwise admissible or subject to discovery outside of a mediation. Id. The court also reasoned that because the Family Code mandated their exchange, financial disclosure documents would have existed and been exchanged in the normal course of a dissolution without a mediation. Id. In addition, their introduction at mediation did not relieve the parties of their disclosure obligation or shield the declarations from discovery. Id.

The court distinguished financial disclosure documents from mediation communications held to be inadmissible on mediation confidentiality grounds in other cases, but cautioned that its decision did not constitute a judicially created exception to the mediation confidentiality statutes. Rather, the declarations of disclosure “do not come within the ambit of Evidence Code section 1119 because they are not prepared for ‘the purpose of, in the course of, or pursuant to, a mediation.’” Id. at 7 n.8.

Amis v Greenberg Traurig (2015) 235 CA4th 331, 185 CR3d 322 In a legal malpractice case, plaintiff sought to circumvent mediation confidentiality by advancing inferences about his former attorney’s supposed acts or omissions during an underlying mediation. Id. at 333. The trial court refused to admit this evidence. On appeal, the court held that the mediation confidentiality statutes barred defendant from defending itself against such an inference. Id. at 329. The court reasoned: “To permit such an inference would allow Amis to attempt to accomplish indirectly what the statutes prohibit him from doing directly—namely, proving GT advised him to execute the settlement agreement during the mediation.” Id. at 341.

The court sympathized with Amis’s claim that mediation confidentiality was not intended to protect attorneys from malpractice claims. Nevertheless, applying Cassel, supra, 51 C4th 113, the court held: “Amis cannot prove that any act or omission by GT caused him to enter the settlement agreement and, hence, to suffer his alleged injuries, because all communications he had with defendant regarding the settlement agreement occurred in the context of mediation.” Amis at 328–9 (citation omitted). The court joined numerous other courts in noting “that seemingly unintended consequence is for the Legislature, not the courts, to correct.” Id. at 340 (citation omitted).

CALIFORNIA FEDERAL COURTS

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Olam v. Congress Mortgage Company (N.D. Cal. 1999) 68 Fed.Supp.2nd 1110 The parties consented to mediation with a court mediator under the Northern District of California ADR Program. The case settled in mediation, and defendant moved to enforce the settlement. Plaintiff opposed the motion, claiming she was subject to undue influence in the mediation. The parties waived confidentiality to permit testimony about the mediation. The court deemed the mediator to have objected and addressed the question of whether the mediator could be compelled to testify notwithstanding Evid C section 703.5’s bar to a mediator’s testifying in a subsequent civil proceeding. The court interpreted Rinaker to call for two-stage balancing analysis: 1) to determine whether interests of comparable or greater magnitude to the values underlying confidentiality in mediation militated in favor of compelling the mediator to appear at an in camera proceeding to reveal what the mediator’s testimony would be; and 2) to decide whether the mediator’s testimony “was essential to doing justice.” After conducting this analysis, the trial judge concluded that barring the testimony “would do considerable harm not only to the court’s mediation program but also to fundamental fairness.” He ordered the mediator to testify under seal and admitted the testimony. Benesch v. Green 2009 WL 4885215 (N.D. Cal.) Fritzi Benesch sued her former attorney Sharon Green for legal malpractice arising from a mediation in connection with a state court action brought by Benesch against her daughter, her son-in-law, her estate planning attorney and the law firm of Orrick Herrington & Sutcliffe. At the end of a mediation in the case, the parties executed a document entitled Terms of Settlement (“Term Sheet”). Subsequently, Benesch argued in state court that the Term Sheet did not accurately reflect her intent in significant respects. The state court rejected this argument and entered an order enforcing the settlement. Benesch then sued her attorney Sharon Green in San Francisco County Superior Court. Following Green’s motion, the case was removed to federal court based on diversity jurisdiction. Thereafter, Green moved to amend its answer to add the defense that plaintiff’s complaint was barred by California’s mediation confidentiality statutes (Evid C sections 1115, et seq.) and for summary judgment, on the basis that confidentiality statutes prevented Benesch from establishing her malpractice claim and precluded Green from meaningfully defending against the complaint. Benesch filed a non-opposition to defendant’s motion to amend the answer and the district court granted the motion. As to Green’s motion for summary judgment, the court denied it without prejudice based on its extensive discussion of California statutory and case law on mediation confidentiality. The district court looked to California Evid C section 1122, which enumerates limited exceptions to mediation confidentiality, and found no applicable exception. The court also reviewed California case law, including Foxgate v. Bramelea and Simmons v. Ghaderi, in which the California Supreme Court strictly applied the mediation confidentiality statutes “. . . even when doing so may lead to an inequitable result.” The district court also looked to the Court of Appeal decision in Wimsatt v. Superior Court, which

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recognized that the application of mediation confidentiality to a mediation may well mean that a party is forced to forego any claims for alleged legal malpractice. The district court also examined the recent California Court of Appeal decision in Cassel v. Superior Court and observed that it is in “significant tension with the large majority of California appellate decisions that apply mediation confidentiality more expansively….” The court concluded that the reasoning of the Cassel dissent was more persuasive than the majority and also that it was true to the statutory language and the California Supreme Court’s injunction not to create implied exceptions. The court held that evidence of mediation communications offered by Benesch was not admissible under Evid C section 1119, but nevertheless denied Green’s motion for summary judgment, holding that Benesch was entitled to conduct discovery to see if she could uncover evidence not protected by mediation confidentiality statutes in support of her claim. Facebook, Inc. v Pac. Northwest Software, Inc. (2011) 640 F 3d 1034 Cameron Winklevoss, Tyler Winklevoss and Divya Narendra (the Winklevosses) sued Facebook and Mark Zuckerberg in Massachusetts, claiming Zuckerberg stole the idea for Facebook from them. Facebook countersued them and their social networking site ConnectU in California, alleging the Winklevosses and ConnectU hacked into Facebook and used stolen user data to spam Facebook users. The federal district court in California dismissed the Winklevosses from the California case and ordered the parties to mediation. ConnectU, Facebook and the Winklevosses participated in mediation. Prior to mediation, the participants signed a confidentiality agreement stipulating that all statements made during mediation were privileged, non-discoverable and inadmissible “in any arbitral, judicial, or other proceeding.” After a day of mediation, ConnectU, Facebook and the Winklevosses signed a handwritten “Term Sheet & Settlement Agreement” (the Agreement) in which the Winklevosses agreed to give up ConnectU in exchange for cash and Facebook stock. The parties stipulated that the Agreement was “confidential,” “binding” and “may be submitted into evidence to enforce [it].” The settlement broke down during negotiation of the formal settlement documents and Facebook filed a motion to enforce the Agreement. ConnectU opposed the motion, arguing that the Agreement was unenforceable in part because it lacked material terms and had been procured by securities fraud, as Facebook had led the parties to believe its stock was worth $35.90 per share, when it knew it was worth $8.88. The district court found the Agreement to be enforceable. The court held the Winkelvosses’ securities claims failed, as the parties’ confidentiality agreement precluded the Winkelvosses from introducing any evidence of what Facebook said or did not say during mediation to prove their claim that Facebook misled them about the value of its shares or that Facebook failed to disclose its tax valuation, which would have added to the information available at the mediation. Id. at 1041. Furthermore, the court observed, as sophisticated parties the Winklevosses “face[d] a

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steep uphill battle” in proving their securities claims. They were fighting over ownership of one of the world’s fastest-growing companies; they had “a good deal” of information about Facebook through discovery; they were represented in mediation “half-a-dozen” lawyers; and Cameron and Tyler Winkelvoss’ father, who also participated in the mediation, was a former Wharton School of Business accounting professor and an expert in valuation. Id. at 1039. Additionally, the court noted

Parties involved in litigation … have every reason to be skeptical of each other’s claims and representations … [and] can use discovery to ferret out a great deal of information before even commencing settlement negotiations. They can further protect themselves by requiring that the adverse party

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supply the needed information, or provide specific representations and warranties as a condition of signing the settlement agreement. Id.

Finally, the court noted that the settlement appeared to be “quite favorable in light of recent market activity,” 3.33 times the value the Winklevosses claim they thought Facebook’s shares were worth at the mediation. “At some point, litigation must come to an end. That point has now been reached.” Id. at 1042. In re: TFT-LCD (Flat Panel) Antitrust Litigation (9th Cir. 2016) 835 F.3d 1155 At trial, the District Court held that California law applied in determining whether email evidencing a mediated settlement agreement was admissible in an action to enforce the agreement. On appeal, the Ninth Circuit reversed, concluding that federal mediation confidentiality law (Fed R Evid 708) applied. 835 F3d at 1159.

The Ninth Circuit noted that federal common law generally governs claims of privilege (Fed R Evid 501): when federal question and pendent state law claims are both present, the federal law of privilege applies. The court held that even though plaintiff had dismissed its federal claims by the time it sued to enforce the settlement agreement, at the time the parties engaged in mediation their negotiations “concerned both issues; the evidence that [plaintiff]seeks to admit ‘relates’ to both federal and state law claims. At the time of mediation, both parties would have expected to litigate both federal and state law issues.” 835 F.3d at 1159.

In dissenting, Chief District Judge Lynn reasoned that in deciding whether state or federal law applies courts should analyze the case “against the backdrop of the claims pending in a lawsuit when a party seeks to admit evidence.” Id. At the time plaintiff sought to admit the evidence, only state claims remained; therefore, the dissent concluded, the district court correctly applied California law. Id.

CASE LAW, ENFORCEABILITY OF MEDIATED SETTLEMENT AGREEMENTS CALIFORNIA SUPREME COURT Fair v. Bakhtiari (2006) 40 Cal. 4th 189 At the conclusion of mediation, the parties signed a document entitled “Settlement Terms,” in which the final provision stated, “Any and all disputes subject to JAMS arbitration rules.” Shortly thereafter they filed a report informing the court the case had settled in mediation. The parties were unable to conclude the formal settlement agreement, and plaintiff filed a motion to compel arbitration under the terms of the settlement memorandum. The trial court held the term sheet inadmissible and denied the motion to compel. The Court of Appeal reversed, holding that the term sheet was admissible because the arbitration provision constituted “words to [the] effect” that the settlement terms were “enforceable or binding” under Evid C section 1123(b).

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The Supreme Court reversed, holding the “terms of agreement” inadmissible. Balancing the requirements of flexibility and clarity, without eroding the confidentiality that is “essential to effective mediation,” the court concluded that to fit within the “words to that effect” provision of section 1123(b) a writing must “directly express the parties’ agreement to be bound by the document they sign.” The agreement must “make clear that it reflects an agreement and is not simply a memorandum of terms for inclusion in a future agreement.” While the writing need not be in finished form to be admissible, “it must be signed by the parties and include a direct statement to the effect that it is enforceable or binding.” CALIFORNIA COURTS OF APPEAL Stewart v. Preston Pipeline (2006) 134 Cal. App. 4th 1565 In a personal injury case, on defendants’ motion to enter judgment under Code of Civil Procedure section 664.6, the Court of Appeal considered whether a mediated settlement agreement was admissible under Evid C section 1123 when it was signed by the attorney for defendants and not defendants themselves. The court held the attorney had the right to waive confidentiality of the agreement and the attorney’s signature satisfied section 1123’s requirement that the agreement be signed by the settling parties.

Elnekave v. Via Dolce Homeowners Association (2006) 142 Cal. App. 4th 1193 Plaintiffs in a toxic mold case moved, pursuant to Code of Civil Procedure section 664.6, to enforce an oral settlement agreement entered in the record, following failed attempts to reduce it to writing. Defendant homeowners association opposed the motion in part because the agreement was not signed by a member of its board of directors. The trial court denied the motion. On appeal by defendant, the Court of Appeal reversed on the ground that the association’s insurer (whose policy was not in the record) and a third party representative (property manager) signed the agreement – not a board member or officer. Provost v. Regents of the University of California (2011) 201 Cal App 4th 1289 Plaintiff Glenn Provost sought to set aside a settlement agreement on the ground that he was coerced into signing it by both his and defendant’s attorneys, who, he asserted, told him that defendant would file criminal charges against him if he did not sign and that his civil case would fail because Orange County juries were pro-defense. The argument was rejected. Evid C section 1119 unqualifiedly bars disclosure of communications made during mediation, absent an express statutory exception, even where this protection may sometimes result in the unavailability of valuable civil evidence. Bowers v Raymond J. Lucia Cos. (2012) 206 CA4th 724, 142 CR3d 64 Prior to a decision in an arbitration proceeding parties to a defamation and related business torts lawsuit resolved their dispute by agreeing to mediate and empowering the mediator to make a binding award by selecting from either plaintiffs’ final demand or defendant’s final offer at the end of a day of mediation not resulting in agreement. When the parties failed to reach agreement at the end of a day of mediation, the defendant had offered $5,000 and the plaintiffs had demanded $5 million. The mediator awarded plaintiffs $5 million, which the trial court entered as a judgment.

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On appeal, defendant argued (1) he never agreed to binding mediation; (2) the contract term providing for binding mediation was too uncertain to be enforceable; and (3) binding mediation is not a constitutionally and statutorily permissible means of waiving jury trial rights. The court rejected all of these arguments and affirmed the mediator’s award.

In re Marriage of Woolsey (2013) 220 CA4th 881, 163 CR3d 551 After the husband (Clark) failed to comply with the terms of the marital settlement agreement he reached in mediation with his wife, Anna, she moved to enforce the agreement under CCP §664.6. Clark opposed the motion, in part, by asserting that Anna failed to make timely financial disclosures under Fam C §§2104 and 2105, that the parties did not attempt to resolve their disputes arising from their settlement agreement in mediation prior to litigating the issues, and he was subjected to undue influence during the mediation, rendering the agreement unenforceable.

The trial court entered judgment of dissolution based on the parties’ mediated agreement. In upholding the decision, the Court of Appeal ruled that “strict compliance with sections 2104 and 2105 is not required for private mediations that address issues arising out of a marital dissolution.” 220 CA4th at 892. The court reasoned that to require technical compliance with disclosure rules designed for adversarial litigation would “undermine the strong public policy of allowing parties to choose speedy and less costly avenues for resolving their disputes.” Id.

The court also held, consistent with In re Marriage of Kieturakis (2006) 138 CA4th 56, 41 CR3d 119, that Clark’s claim of undue influence was precluded by Evid C §1119 and, in addition, “there is no presumption of undue influence in a marital settlement agreement reached as the result of mediation.” Woolsey, 220 CA4th at 901.

CALIFORNIA FEDERAL COURTS Facebook, Inc. v Pac. Northwest Software, Inc. (2011) 640 F 3d 1034 The US Court of Appeals for the Ninth Circuit addressed whether an agreement signed at the end of mediation but intended to be completed after mediation contained essential terms such that it was enforceable. The trial court held that the parties’ handwritten “Term Sheet & Settlement Agreement” (the Agreement), signed at the end of a day of mediation, was unenforceable because it lacked material terms. The court of appeal disagreed, holding that the terms were sufficiently definite for a court to determine whether a breach has occurred, order specific performance or award damages. The parties agreed that Facebook would “swallow up” ConnectU, that the Winklevosses would get cash and a small interest in Facebook and that the settlement would resolve all of their disputes. Id. at 1037. The court also held that the Agreement was enforceable “even though everyone understood that some material aspects of the deal would be papered later,” and instructed that the lower court could, if necessary, “fill in missing terms by reference to the rest of the contract, extrinsic evidence and industry practice.” Id. at 1038.

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MEDIATOR AND ATTORNEY FEE AWARDS Cullen v Corwin (2012) 206 CA4th 1074, 142 CR3d 419 Reasoning that that parties who have a contractual obligation to participate in mediation “are not entitled to postpone [mediation] until they feel that they have marshaled the strongest possible support for their positions in litigation and mediation,” the court held that plaintiffs’ refusal to mediate until after a decision on their motion for summary judgment precluded them from recovering attorney fees to which they were otherwise entitled. Grossman v Park Fort Wash. Ass’n (2013) 212 CA4th 1128, 152 CR3d 48 The Court of Appeal upheld an award of attorney fees that included costs and attorney time for participating in prelitigation mediation.

After the trial court ruled in favor of plaintiff homeowners in their action against defendant homeowners association, plaintiffs filed a motion for attorneys’ fees pursuant to the parties’ CC&Rs that included 38.1 hours of attorney time and plaintiffs’ share of the mediator’s fee incurred in connection with a mediation that took place before plaintiffs filed their lawsuit. In opposing the motion, defendant argued that the recovery for costs and time spent on prelitigation mediation was not authorized by the attorneys’ fees provision contained in Civ C §5975, former §1354(c), which permits recovery of fees and costs in an action to enforce the governing documents of a common interest development.

The court held that Civ C §5975, former §1354(c) permits such recovery of reasonable fees and costs, and a party “does not act unreasonably when it spends money on attorney fees and costs during prelitigation alternative dispute resolution (ADR). The alternate view—that such expenditures are categorically unreasonable—is contrary to the strong public policy of promoting the resolution of disputes through mediation and arbitration.” 212 CA4th at 1133. The statutory scheme of the Davis-Stirling Common Interest Development Act, Civ C §4000 et seq. requires a prospective plaintiff to submit the dispute to ADR before filing a lawsuit to enforce the governing documents, “effectively mak[ing] ADR mandatory and, therefore, preclud[ing] a determination that the time and effort spent pursuing ADR was unreasonable per se.” 212 CA4th at 1134.

Additionally, the court held, Civ C §5975, former §1369.580, which provides that a party’s refusal to participate in ADR before the start of the action could affect the attorneys’ fees award, “strongly implies that the attorney fees a prevailing party spent trying to convince a recalcitrant party to submit the dispute to ADR could be recovered, if otherwise reasonable.” 212 CA4th at 1134.

The court extended Grossman (and Civ C §5975) to apply the fee-shifting provisions of Davis-Stirling to a lawsuit to enforce an agreement reached during mediation in Rancho Mirage Country Club Homeowners Association v Hazelbaker (2016) 2 CA5th 252, 206 CR3d 233, The court held that a motion for attorney fees was appropriate as an action “to enforce the governing documents,” where the mediation was initiated pursuant to Davis-Stirling. 2 CA5th at 259.

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Mediating Trust and Estate Disputes

Bar Association of San Francisco December 5, 2017

Alicia Gámez Gámez Law

Bette Epstein ADR Services, Inc. Dana L. Curtis

Dana Curtis Mediation, Santa Clara Law Howard A. Slavitt

Coblentz Patch Duffy & Pass LLP

When to Mediate Consider: Pros and cons of early settlement

Parties’ appetite (and budget) for litigation

Gathering of sufficient information

Need for formal discovery

Readiness to generate and evaluate settlement options

Presence or role of rational or irrational actors

Whether the relationship of the parties benefits from earlier mediation or requires further case development

Opening Settlement Proposals Consider: Who goes first? Typically, complaining party makes

demand.

Are proposals based on sufficient practical and legal information?

Do they address the parties’ interests?

Should they be communicated prior to or during mediation?

Does the calculus change when insurance is available?

Preparation for Mediation Gather information necessary for binding decisions, e.g. appraisals,

trust accountings

Prepare and agree on a form settlement agreement

Prepare client to enter into a binding settlement agreement at mediation

Prepare the clients Explore their interests – what matters to them Educate them about The process Their roles and the roles of counsel and the mediator The goal to reach agreement at the end of the session that the parties

can live with

Mediation Statements Do

Remember your audience includes other party

Your purpose is to educate and persuade

Exchange statements on time or early

Consider

Describing the practical impacts of failing to reach agreement

Submitting separate confidential statements – or calls with the mediator after submission and before mediation

Don’t

Inflame or antagonize the other party

Underestimate the importance of a well-crafted statement

Pre-Mediation Procedures Every case is unique

Mediator practices differ and may include Joint or separate calls with counsel Confidential meetings or calls with parties, with or without

attorneys

Request appropriate pre-mediation procedures

Practice Tips

Successful Mediated Negotiations Exchange information and perspectives before negotiating

Encourage parties to listen for understanding – which does not require agreement

Assess parties’ interests and goals – explore beneath positions If goal is to repair relationships or improve communication, consider joint sessions If goal is to make a clean break, emphasize finality If goal is to achieve closure, help them to imagine a future in which they do not feel resentment.

Then, ask them to describe how the future differs from the present

Discuss options that best express the parties’ interests

Be creative - resolve non-monetary, value-creating solutions first How to perform settlement agreement, such as move-out terms How to apportion real estate based on parties’ needs and interests or to minimize reassessment and

taxes How to apportion rights to the season tickets to the opera, symphony or Warriors.

Resolve money last

Resolving Tangible Personal Property Disputes Challenges

Emotional attachment

Motive to deprive another party

Missing property – What happened? Where Is it? Who has it?

Strategies Create an agreed, sufficiently detailed inventory, with reliable

valuations for high-value items

Tangible Personal Property Disputes Cont’d Propose an even-handed process One choice each from the inventory in round #1; switch order for

round #2; and repeat until all selected Divide property after parties resolve the other issues Remind parties of their BATNA – the Court will order the sale of all

property

Other considerations Level of detail to include in settlement agreement – too

much vs. too little

Whether the mediator could facilitate the division on site

How to Break a Deadlock Encourage the parties and counsel to be patient - mediation is a process

Normalize getting stuck – warn parties beforehand

Share responsibility with the mediator – include everyone in brainstorming about the cause and how to get back on track

Before mediation, consider scheduling two days in high-conflict disputes

Mediator’s proposals – less effective when overused or employed too early

Communicate optimism

Tell stories of other – worse – cases that have resolved

Mediation Confidentiality

Domains of Mediation Confidentiality Mediator’s pledge to keep the mediation process

confidential

Parties’ expectations re privacy – what they can say and to whom

Caucuses Be clear about the mediator’s default rule Clearly identify information you do not want shared

Evid. Code §§ 703.5 and 1115-1128 (and case law, including 5 California Supreme Court decisions)

Pre-Mediation Communications Evid. Code §§1119(a) and 1115(c) “No evidence of anything said or any admission made for the purpose of,

in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” Evid. Code §1119(a), emphasis added.

“‘Mediation consultation’ means a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator.” Evid. Code §1119(c), emphasis added.

Post-Mediation Communications Evid. Code §1125 Confidentiality ends when Signed settlement agreement or terms of agreement on the record

Writing signed by mediator stating the mediation is terminated

Writing by party stating mediation is terminated (however, any remaining parties may continue to mediate)

For 10 calendar days, there is to communication between the mediator and any of the parties to the mediation relating to the dispute (however, the mediator and the parties may agree to shorten or extend this time)

Best practice In a written confidentiality agreement, state the terms under which

mediation confidentiality ends

Admissibility of Settlement Agreement Evid. Code §1123 Must be “signed by the settling parties” and provide

“[I]t is admissible or subject to disclosure, or words to that effect.”

“[I]t is enforceable or binding or words to that effect.”

All parties to the agreement expressly agree to disclosure in writing or in court.

The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

Case Law – Evid. Code §1123 Fair v. Bakhtiari (2006) 40 Cal. 4th 189

A mediated agreement must “directly express the parties’ agreement to be bound by the document they sign…and must “make clear that it reflects an agreement and is not simply a memorandum of terms for inclusion in a future agreement.” A statement that the parties intend to resolve disputes under the agreement in arbitration is not sufficient. Although the writing need not be in finished form to be admissible, “it must be signed by the parties and include a direct statement to the effect that it is enforceable or binding.”

Facebook Inc. v. Pac. Northwest Software Inc. (2011) 640 F.3d 1034 A handwritten term sheet signed during a mediation stating that it is “binding” and “may be submitted into evidence to enforce [it]” is binding even though some material terms may need to be filled in later; moreover, evidence of alleged fraud in the inducement that occurred during the mediation was not admissible due to the mediation privilege; settlement was enforceable and binding.

Enforceability of Oral Mediated Agreements Evid. Code §1118 Must be recorded by a court reporter or reliable means of audio

recording

The terms of must be recited on the record in the presence of the parties and the mediator, and the parties must express on the record that They agree to the terms recited; and The agreement is enforceable, or binding or words to that effect

The recording must be reduced to writing and the writing signed by the parties within 72 hours after it is recorded

When Clients Ignore Your Advice Due to the emotional/family nature of these disputes, it is not

extraordinary for an attorney to disagree with a client’s demands and/or agreements in a mediation.

Enlist the mediator’s help To mediate between you To brainstorm with you privately about how to address the problem To provide feedback to your client – asking first if the mediator’s

perspective would be useful

Other ideas

Attorney Malpractice and Mediation Cassel v. Superior Court (2011) 51 Cal. 4th 113. Holding: attorney-

client communications concerning a mediation are inadmissible in a subsequent lawsuit by a client against an attorney for malpractice.

Cassel does not offer foolproof protection. Client may attempt to assert a malpractice claim based on pre-mediation or post-mediation communications that were discussed and resolved during a mediation, but that are not admissible.

Document advice to client in writing before client signs agreement? For example, by sending during mediation an email stating pros and cons.

Legislative Response to Cassel CLRC study - Relationship Between Mediation and Attorney

Malpractice and Other Misconduct - commenced in 2013

CLRC recommends exceptions to mediation confidentiality for State Bar disciplinary proceedings Attorney malpractice lawsuit Attorney-client fee dispute

Updates regarding proposed revisions and public meetings are available on the CLRC’s website. http://www.clrc.ca.gov/

http://www.clrc.ca.gov/

Questions?

Alicia Gámez, Gámez Law [email protected]

Bette Epstein, ADR Services, Inc. [email protected]

Dana Curtis, Dana Curtis Mediation Director, Dispute Resolution Program, Santa Clara Law [email protected]

Howard A. Slavitt, Coblentz Patch Duffy & Pass LLP [email protected]

mailto:[email protected]

mailto:[email protected]

Documents

MEDIATION LAW AND ETHICS 2017 DANA L. CURTIScontent.sfbar.org/source/BASF_Pages/PDF/G170516 Materials...mediation conducted by the mediator, other than a report that is mandated by