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:
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!
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
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
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