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.
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.
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.
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
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.
Rojas Reversed
On
Citing its decision in Foxgate (2001) 26
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
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
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
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
