Ralph O. Williams III

 
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Mediation Tips - Law & Resources 

Make the Settlement Agreement Binding

After reaching agreement at a mediation, it is imperative that the essential terms of the agreement be reduced to writing and signed by the parties or their insurers.  If the settlement agreement is breached, then the aggrieved party can move to enforce it under CCP 664.6.

In addition to the deal points, the settlement agreement must use “magic words” such as:

This is a binding Settlement Agreement pursuant to Evidence Code §1123 and is admissible into evidence to enforce its terms pursuant to Code of Civil Procedure §664.6.

This language ensures that the mediation confidentiality provisions of Evidence Code §1119 do not apply and that the agreement can be introduced into evidence.

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ADR on the Web

If you want to update, sharpen or broaden your ADR (Alternative Dispute Resolution) skill set or review the Court or Bar programs, check out the following websites.

Mediation Information & Resource Center, www.mediate.com, is largest mediation information site on the web.

ADR Resources, www.adrr.com, mediation resource site including essays on mediation basics.

L.A. Superior Court ADR Program, www.lasuperiorcourt.org/adr/index.asp, describes the Superior Court ADR process and lists mediator/arbitrator biographies.

Dispute Resolution Service, www.lacba.org/community/drs.html, describes the L.A. County Bar mediation and outreach programs, especially the Attorney–Client mediation and arbitration services.

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Rojas Update and Advice

Rojas v. Superior Court, decided October 10, 2002, construes the mediation privilege (Evidence Code 1119), writings prepared for mediation are not admissible or subject to discovery and its exception (Evidence Code 1120), evidence otherwise admissible or subject to discovery is not protected solely because it was used in a mediation.  In summary, the court used a work product analysis to hold that briefs and negotiations are protected, “purely factual material” is not protected and “derivative material” such as charts, graphs, diagrams and compilations is producible subject to a “good cause” standard.

Expect a Petition for Review to be filed by November 20, 2002. 

In the meantime, litigators should not use any charts, graphs, diagrams, reports or compilations in mediation that they do not want to risk producing in discovery or admitting in evidence.

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Rojas Reversed

On July 12, 2004, The Supreme Court held that documents, as defined by Evidence Code §250, prepared for a mediation are privileged under Evidence Code §1119(b), overruling the Court of Appeal’s judicially created work product exception.

Citing its decision in Foxgate (2001) 26 Cal 4th 1, the Supreme Court confirmed the public policy underlying the mediation privilege. “Confidentiality is essential to effective mediation because it promotes a candid and informal exchange regarding events in the past.  This frank exchange is achieved only if participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes.  To carry out the purpose of encouraging mediation by ensuring confidentiality, our statutory scheme unqualifiedly bars disclosure of specified communications and writings associated with a mediation absent an express statutory exception.” [e.g., Evidence Code §1120 (otherwise discoverable material), Evidence Code §1123 (Settlement Agreements) and Evidence Code §1122 (Parties’ Agreement)]

Rojas v. Superior Court, S111585, full text link in Word format:

http://www.courtinfo.ca.gov/opinions/documents/S111585.DOC

Rojas v. Superior Court, S111585, full text link in PDF format:

http://www.courtinfo.ca.gov/opinions/documents/S111585.PDF

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Binding Settlement Agreements at Mediation

In Fair v. Bakhtiari, (Dec 2006) S129220, 2006 DJDAR 16184, 2006 WL 3627208 (full text links below), the Supreme Court affirmed the Trial Court’s finding that a signed term sheet was not admissible to enforce its terms because it did not comply with Evidence Code §1123(b), which requires language that the settlement agreement “is enforceable or binding or words to that effect.”  The Supreme Court stated, “The writing need not be in finished form to be admissible under section 1123(b), but it must be signed by the parties and include a direct statement to the effect that it is enforceable or binding.”

Here is language that will satisfy Evidence Code §1123(b), “This is a binding Settlement Agreement pursuant to Evidence Code §1123 and is admissible into evidence to enforce its terms pursuant to Code of Civil Procedure §664.6.”

Full Text PDF:  http://www.courtinfo.ca.gov/opinions/documents/S129220A.PDF

Full Text Word: http://www.courtinfo.ca.gov/opinions/documents/S129220A.DOC

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Court Cannot Compel Private Mediation

Jeld-Wen v. Superior Court, D048782, January 2007 held “that a trial court exceeds its authority by mandating that parties attend and pay for private mediation over their objection.”  The order to attend and pay for private mediation was part of a Case Management Order in a complex civil case.  The Court of Appeal distinguished Lu v. Superior Court, 55 Cal. App. 4th 1264 (1997), where the trial court ordered a reference under CCP 639, compelling the parties to pay for a Mandatory Settlement Conferences, noting that mediation is voluntary in nature and cannot be compelled.

Full Text PDF:  http://www.courtinfo.ca.gov/opinions/documents/D048782.PDF

Full Text Word: http://www.courtinfo.ca.gov/opinions/documents/D048782.DOC

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Mediation Confidentiality Prevents Discovery in Legal Malpractice Action

Wimsatt v. Superior Court (Kausch) holds that mediation confidentiality (Evidence Code § 1119) protects mediation briefs and emails discussing the briefs from discovery in a legal malpractice action. 

Plaintiff settled his personal injury case at mediation.  He then filed a legal malpractice action claiming that prior to the mediation his lawyer reduced the settlement demand without authority.  Plaintiff learned about the alleged demand reduction from the defense mediation brief and sought discovery about the statements in the brief and emails discussing those statements.  The Trial Court denied a motion for protective order brought by the defendant lawyer and his firm.

The Court of Appeal reversed and directed the Trial Court to enter the protective order, reasoning that because the Supreme Court, when given the opportunity in Rojas and Foxgate to fashion judicial exceptions to mediation confidentiality had refused to do so, no judicial exception was authorized.  Recognizing that Plaintiff would be impaired from proving his legal malpractice case, the Court of Appeal invited legislative intervention.

Full Text PDF: http://www.courtinfo.ca.gov/opinions/documents/B196903.PDF

Full Text Word: http://www.courtinfo.ca.gov/opinions/documents/B196903.DOC

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Mediation Confidentiality Upheld – Again

For the third time, the California Supreme Court has refused to create an exception to mediation confidentiality.  Simmons v. Ghaderi (July 2008) S147848 holds, "mediation confidentiality now clearly applies to prohibit admissibility of evidence of settlement terms made for the purpose of, in the course of or pursuant to a mediation unless a statutory exception applies."

During a mediation in a medical malpractice/wrongful death case, defendant, Dr. Ghaderi gave her insurer written consent to settle with plaintiff Simmons for up to $125,000.  The case settled and the mediator wrote it up.  When informed of the settlement, Dr. Ghaderi orally revoked her consent, did not sign the agreement and left the mediation.   

Simmons made a CCP §664.6 motion to enforce the settlement.  At the hearing, the facts of the oral settlement agreement were before the court in the form of declarations from the parties, counsel and the mediator. The CCP §664.6 motion was denied because there was no written agreement signed by the defendant or her insurer.

Simmons amended the complaint to plead breach of the oral settlement agreement.  At trial Dr. Ghaderi claimed for the first time that mediation confidentiality barred evidence of the oral settlement reached at the mediation.  The Court overruled the objection and admitted the evidence, holding that Dr. Ghaderi's conduct in opposing the CCP 664.6 motion judicially estopped her from claiming the mediation confidentiality privilege, Evidence Code §1119.  The Court of Appeals affirmed.

The Supreme Court reversed, stating that absent due process issues or an express waiver, mediation confidentiality is to be strictly enforced.

Practice tip:  To be enforceable a settlement, if written, must comply with Evidence Code §1123 and if oral, it must comply with Evidence Code §1124. 

Simmons v. Ghaderi S147848 full text link in PDF format: http://www.courtinfo.ca.gov/opinions/documents/S147848.PDF
Simmons v. Ghaderi S147848 full text link in Word format: http://www.courtinfo.ca.gov/opinions/documents/S147848.DOC

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Expanded Judicial Review of Employment Arbitration Award

The California Supreme Court in Pearson Dental Supply v. Superior Court (Luis Turcios), a FEHA arbitration, permitted judicial review for legal error of an arbitrator’s award, which misapplied the tolling provisions of CCP 1281.12.

Following his termination, Turcios, a 67-year-old janitor timely sued his employer, Pearson in Superior Court for, among other causes of action, violation of FEHA. After demurring, answering and conducting discovery, Pearson moved to compel arbitration pursuant to a pre-dispute arbitration agreement. The Trial Court granted the motion and an arbitrator was selected. In the arbitration Pearson moved for summary judgment based on a one year statute of limitation in the arbitration agreement. Turcios opposed, in part relying on the tolling provision of CCP 1281.12, which states that filing a civil action tolls the contractual statute of limitation from the filing until 30 days after the final determination that the party is required to arbitrate.

The arbitrator granted the MSJ without analyzing CCP 1281.12. The Trial Court, “finding a clear error of law” ruled that “the arbitrator acted in excess of his jurisdiction” and vacated the award. The Court of Appeal reversed citing Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, for the proposition that even errors of law on the face of the award are not grounds to vacate. 

The Supreme Court affirmed the Trial Court, holding: “that when, as here, an employee subject to a mandatory employment-arbitration agreement is unable to obtain a hearing on the merits of his FEHA claims, or claims based on other unwaivable statutory rights, because of an arbitration award based on legal error, the trial court does not err in vacating the award.”

In employment arbitrations, to facilitate judicial review, expect Petitioner’s counsel to request, in accordance with Armendariz (2000) 24 Cal.4th 83, that the “arbitrator in a FEHA case must issue a written arbitration decision that will reveal, however briefly, the essential findings and conclusions on which the award is based.”

Pearson Dental Services v. Superior Court (Luis Turcios)
S167169, 2010 DJDAR 6080, April 26, 2010, full text links below.

http://www.courtinfo.ca.gov/opinions/documents/S167169.PDF

http://www.courtinfo.ca.gov/opinions/documents/S167169.DOC

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What Happens in Mediation, Stays in Mediation

In Cassel v. Superior Court (January 2011), citation and links below, the California Supreme Court held that mediation confidentiality extends to private attorney-client communications before and during mediation. Cassel sued his attorneys, Wasserman, Comden, Casselman & Pearson for legal malpractice and breach of fiduciary duty claiming that they coerced him into settling at mediation. In pre-trial motions the defense moved “to exclude all evidence of private attorney-client discussions immediately preceding, and during, the mediation concerning mediation settlement strategies and defendants’ efforts to persuade petitioner to reach a settlement in the mediation. The trial court granted the motion, but the Court of Appeal vacated the trial court’s order.”

The Supreme Court reversed, holding: “All oral or written communications are covered, if they are made “for the purpose of” or “pursuant to” a mediation. (Evidence § 1119, subds. (a), (b).) It follows that, absent an express statutory exception, all discussions conducted in preparation for a mediation, as well as all mediation-related communications that take place during the mediation itself, are protected from disclosure. Plainly, such communications include those between a mediation disputant and his or her own counsel, even if these do not occur in the presence of the mediator or other disputants.

The question remains, if mediation is a black box where nothing but a settlement agreement comes out, where is the edge? The Supreme Court gave little guidance. “We need not decide in this case the precise parameters of the phrase ‘for the purpose of, in the course of, or pursuant to, a mediation.’ The communications the trial court excluded from discovery and evidence concerned the settlement strategy to be pursued at an immediately pending mediation. They were closely related to the mediation in time, context, and subject matter, and a number of them occurred during, and in direct pursuit of, the mediation proceeding itself.” As with many other difficult evidentiary privilege issues, our trial judges will make the difficult day-to-day calls.

Cassel v. Superior Court S178914 2011 DJDAR 658

http://www.courtinfo.ca.gov/opinions/documents/S178914.PDF

http://www.courtinfo.ca.gov/opinions/documents/S178914.DOC

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Trial Lawyers’ ADR Panel

It's official. The Los Angeles Superior Court ADR program closes June 28, 2013. For 20 years dedicated lawyers served pro bono, helping the court, our colleagues and clients resolve their cases. Now what?

How about a cloud-based, pro bono ADR panel co-sponsored by some or all of our four major trial lawyer organizations, ABOTA, CAALA, ASCDC and ABTL? Below is the program's "back of the envelope" outline.

  1. Set up a cloud-based ADR panel with computer access for all organization members.
  2. Don't reinvent the wheel. Use as much of the court program as possible: forms, qualifications and procedures.
  3. Coordinate with the courts. Think, cloud-based, pro bono Gold Card.
  4. Lawyers and neutrals would be responsible for scheduling their cases once a neutral is chosen.
  5. Panel selection and quality control would be maintained and monitored by the sponsoring organizations with open feedback from the lawyers using the program.

When the panel is formed, I’m the first volunteer.

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Underutilized MSAI Tool - CCP 437c(s)

California Code of Civil Procedure §437c(s) allows parties to move for summary adjudication of an issue that does not completely dispose of a cause of action or defense. This little used or commented upon section became effective January 1, 2012 and sunsets January 1, 2015.

A motion pursuant to CCP 437c(s) requires the parties' stipulation framing the issue, their declaration that the motion furthers judicial economy by reducing trial time or increasing settlement prospects and the court's order permitting the motion's filing. Once presented with the parties' stipulation and declaration, the court has 15 days to permit/deny the motion's filing. If the parties request, the court must conduct an informal conference reviewing its disallowing the motion’s filing.

The statute's key drawback is that it is governed by MSJ procedures (CCP 437c(s)(7)). There is no real trial time savings or settlement promotion to a motion that will not be heard for 100+ days, while discovery continues. The solution is to include an expedited briefing schedule in the parties' stipulation.

The statute's hidden assumption is that the motion will be made on agreed facts. No trial judge will consent to a motion which will be denied on contested facts. To permit such a motion wastes court time, not saves it.
CCP 437c(s) seems best suited for:

  1. Interpreting contract terms, e.g. do the agreed facts amount to a material breach?
  2. Determining if the agreed facts amount to a breach of duty in a professional liability case.
  3. For particular doctrines (e.g. the special benefit rule) that might apply to limit damage claims.
  4. A legal issue that would be brought as a motion in limine.

In this time of limited resources, creative use of CCP 437c(s) by bench and bar well serves litigants waiting for their day in court.

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Mediation Reading List

Whether a new or experienced practitioner, there is no substitute for reading the key mediation and problem solving books listed below.

  1. Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher, William Ury and Bruce Patton, 1981, 1991, 2011. The seminal negotiation text from the Harvard Project on Negotiation.
  2. Getting Past No: Negotiating in Difficult Situations, William Ury, 1991, 2007. The follow up book to Getting to Yes completes the introduction to interest-based bargaining.
  3. Influence: The Psychology of Persuasion, Robert Cialdini, 2009, 2012. Arizona State psychology professor surveys and distills research and experience to show what moves people to act or buy.
  4. Difficult Conversations: How to Discuss What Matters Most, Douglas Stone, Bruce Patton and Sheila Heen, 2000, 2010. Authors synthesize psychology, sociology, organizational behavior and law to demonstrate how to conduct a difficult conversation with anyone.
  5. Mediating Legal Disputes: Effective Strategies for Neutrals and Advocates, Dwight Golann, 2009. A pragmatic mediation guide with a helpful DVD.
  6. Alternative Dispute Resolution - The Rutter Group, Warren Knight, Richard Chernick, Susan Haldeman and William Bettinelli, updated annually. The authoritative California ADR practice guide.

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ADR Reading List – Periodicals

Keeping up with ADR developments, research and techniques builds and improves advocacy skills and your ability as a neutral. Below are the top ADR periodicals.

  1. Negotiation
    published by the Program on Negotiation at the Harvard Law School, http://www.pon.harvard.edu/publications/negotiation-journal/
  2. ABA Dispute Resolution Magazine, http://www.americanbar.org/publications/dispute_resolution_magazine.html
  3. Conflict Resolution Quarterly
    published by the Association for Conflict Resolution, http://onlinelibrary.wiley.com/journal/10.1002/%28ISSN%291541-1508
  4. The Mediate.com Weekly
    http://www.mediate.com/newsletter/

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ADR Training

If you want to broaden your mediation/arbitration advocacy skills or become a full time neutral, ADR training is an essential component. Below is a list of training opportunities. The first two are essential; the last four expand your learning.

  1. Pepperdine University – Mediating the Litigated case (42 hours) http://law.pepperdine.edu/straus/training-and-conferences/mediating-litigated-case/malibu.htm
  2. Los Angeles County Bar Association Center for Civic Mediation 30-Hour Basic Mediation Training and an 18-HourAdvanced Skills Practicum  http://www.lacba.org/showpage.cfm?pageid=4484
    http://www.lacba.org/showpage.cfm?pageid=3520
  3. American Arbitration Association, https://www.aaau.org/home 
  4. Lee Jay Berman, http://www.americaninstituteofmediation.com/pg1.cfm
  5. Woody Mosten Mediation and Collaborative Law Training, http://www.mostenmediation.com/training/
  6. Nina Meierding Negotiation& Mediation Training Services, http://www.mediate.com/ninameierding/pg1.cfm

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