California Supreme Court reaffirms absolute nature of statutory mediation privilege
July, 2008
By
Andrew B. Downs
On July 21st, the California Supreme Court held that California's Mediation confidentiality statutes, Evidence Code §§ 1115-1128, mean what they say and bar the parties from offering evidence of oral agreements reached during mediation proceedings.
Since 1997, California has had statutes providing that mediation proceedings are confidential and prohibiting the introduction into evidence of statements and admissions made during the course of a mediation. There are limited statutory exceptions for recorded oral agreements and written agreements signed by the settling parties.
Simmons v. Ghaderi (No. S147848, 7/21/2008) resulted from the mediation of a medical malpractice lawsuit. After initially authorizing her insurer to settle the suit against her, the defendant physician attempted to revoke that authorization after the insurer made a settlement offer that was accepted. Despite the absence of a written agreement, the plaintiff attempted to enforce the settlement by offering evidence in the trial court of what happened at the mediation.
The California Supreme Court held that there were no implied exceptions to the statutory scheme of confidentiality in mediations. Because the circumstances of this case did not fit within any of the statutory exceptions, the court held that testimony regarding what happened at the mediation should not have been admitted into evidence. It rejected arguments that the defendant should be estopped from objecting, or that by her conduct, she had waived her right to confidentiality.
Two lessons can be drawn from this case. First, what happens in a mediation stays in the mediation, unless one of the narrow statutory exceptions to the rule of confidentiality applies. Second, if a mediation leads to a settlement, the material terms of the settlement need to be put in writing, with the writing providing that the agreement is enforceable and may be disclosed. Oral settlement agreements that comply with very strict statutory provisions (including the transcription of them within 72 hours with the parties signatures) are also enforceable, but the procedure for ensuring their enforceability is more complicated and is dependent upon post-mediation conduct.
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