Search Mediators Near You:

New California Case on Mediation Confidentiality and Recovery of 1717 Attorney Fees

How do California’s Courts protect mediation confidentiality?  Let me count the ways. You can’t impliedly waive the protections of Evidence Code section 1115 et seq. nor be estopped from raising them.  Their walls will not be breached by allegations of fraud or any lesser form of bad faith.

Still, litigants keep on trying.

The same week during which a Petition for Review of the recent Thottam opinion went up to the California Supreme Court (“the big print giveth, the small print taketh away) yet another appellate opinion came down telling us that you cannot be judicially estopped from asserting mediation confidentiality — this time in connection with a party’s request for an award of attorneys’ fees under Civil Code section 1717.  The case is  Rael v. Davis, yet another estate dispute not entirely unlike Thottam.

(here, by the way, is the Thottam Petition for Review)

I continue to find that 90% of the attorneys whose cases I mediate do not know:

  1. how to protect their mediated deal by complying with the requirements of Evidence code section 1123; or
  2. just how strong the confidentiality protections are in California, both before and after the Supreme Court’s Simmons v. Ghaderi opinion.

I will say it again:  litigators settle cases at mediation at their peril if they do not stay current with the torrent of cases coming down from the Supreme Court and Courts of Appeal on the issues of enforcement and confidentiality.  Fail to properly document the settlement agreement, have it blow up in the parties’ faces, follow it with litigation over the agreement that was supposed to settle the underlying litigation and you’ve got an explosive mixture leading straight to your malpractice carrier’s front door.

Hey!  Be careful out there!

                        author

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

Featured Mediators

ad
View all

Read these next

Category

Dealing With The Pains Of Divorce Through Meaningful And Complete Apology

If you are contemplating divorce, in the midst of a divorce, or already have a divorce decree in hand, you know pressures of the legal process do not compare to...

By Dina Haddad
Category

Ray Shonholtz: The Passing of a Community Mediation Visionary

Also see Mediate.com MemorialsIt is with great sadness that we announce the loss of our friend and colleague Raymond Shonholtz. Ray was a visionary within community mediation from its earliest...

By Justin Corbett
Category

Come, Sit, Stay: Mediation Lessons from Dog Training

Come, sit, stay are the basics of dog training. I believe they are also central to mediation. Meet Ziggy and Chela, amazing border collies who have been two of my...

By Sue Bronson

Find a Mediator

X
X
X