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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!


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 >

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