On Mediation Confidentiality – More Work for the California High Court

August 23, 2008 · Filed Under Mediation - General · Comment 

By Dave Finch

Doesn’t it seem as though arguments about the meaning of mediation confidentiality ought to be over by now? Having co-written the successful CDRC amicus brief in Rojas, and applauded this year’s consistent decision in Simmons vs. Ghaderi, I certainly thought so. Yet, once or twice a year trial courts and appellate courts encounter slightly unusual fact situations and just cannot help trying to find ways to skate around California Evidence Code 1119 (a) and (b). Now in August, 2008, we have In re Estate of Thottam, just decided in the 2d District.

In recent years there have been at least five appellate court attempts to carve out additional exceptions showing little respect for Evidence Code 1123, which the state high Court has held repeatedly contains the only exceptions available. That statute allows disclosure and admissibility of an agreement made in the course of mediation if the parties adopt wording showing they intend it to be admissible and enforceable. Oral agreements may be enforced provided they are recorded and reduced to writing within 72 hours. But, the high Court in Foxgate, then Rojas, and this year, Ghaderi has said “no” to these previous attempts, except for two early ones involving (a) a child’s constitutional right to confront witnesses and (b) an incompetent woman duped into agreement during mediation, in both of which the Court in Foxgate said that hereafter those exceptions would be limited to those factual situations. What part of “no” is so hard to understand? In this sixth case of appellate court sciolism relative to Section 1123, the Thottam court allows admission into evidence and testimony about a chart made in the course of the mediation purporting to allocate estate assets to the three sibling heirs. During the mediation each had placed his or her initials at the top of the chart’s column assigning an asset to him or her. There was no comprehensive written agreement which included the language suggested by Section 1123 to the effect that this was an agreement the parties considered binding. When a sister later filed an action of her own rejecting the claim of the brother who proposed the deal that an agreement had been finalized, the trial court held the document inadmissible under Section 1119(b) and that the exception provided for in 1123 had not been vivified. The appellate court, not liking this outcome, reversed on the “factual” ground that the pre-mediation agreement to mediate, recited that everything said in the mediation would be confidential, “(except as may be necessary to enforce any agreements resulting from the Meeting)”. The appellate court felt this is enough to make anything that happens during mediation admissible so long as one of the parties contends that an agreement was made.

So this Court, effectively deciding that the parties can write their own statute on confidentiality, also was comfortable with the proposition that when they use the word “enforce” they also mean “prove the existence of”, a proposition completely blown away in the Supreme Court’s decision in the Ghaderi case. So now if Thottam is allowed to stand, so long as parties in mediation have a pre-mediation agreement in which some vague statement is made about waiving confidentiality to enforce or prove an agreement, if one of them claims an agreement was made, confidentiality of mediation goes away. No doubt the court was focused on the fact that each of the siblings initialed his or her part of the chart. Yes, and Dr. Ghaderi admitted authorizing her attorneys to sign the settlement agreement. But, the Ghaderi court made indelibly clear that you don’t bootstrap your way to an enforceable agreement by letting in a little confidential information, which then justifies going whole hog. That is just what the 2d district has done. More work for the California Supreme Court.

Taking Full Advantage of the Mediation Potentials

August 19, 2008 · Filed Under Mediation - General · Comment 

                                    By Dave Finch           

The mediation process is a flexible and expandable one in which the full range of the trial lawyer’s skills can be used to profitable effect.   The extent to which those skills are used affects the potentials for a mutually agreeable resolution.

            Many lawyers have realized that mediation presents a unique opportunity for a persuasive presentation to the opposition in a setting conducive to being really heard.  When there is an appellate decision that establishes a key point, here is a chance to make sure the opposition understands it.  Where there is physical evidence that would powerfully affect the thinking of a jury, why not show it here?  If an evidentiary issue calls for special expertise, where better than here in mediation to let your expert advance and enhance your argument?   Helpful deposition testimony can also be displayed to good effect here.  The advocate may want to save a surprise or two for trial, but mediation offers an abundance of opportunities for the effective communication of the strengths of one’s case.

            Skillful negotiation also involves empathetic listening to the opposition, for this enables the advocate to better focus the argument and show that s/he is prepared to deal with the strong as well as the weak opposition points.

            Your opposition will be far more amenable to resolution when your argument has been presented with a clarity that cannot be missed or under-evaluated.  And a negotiator enjoys greater respect, who listens attentively and offers a focused response.


Reactive Devaluation

August 15, 2008 · Filed Under Mediation - General · Comment 

                              By Dave Finch

A frequently recurring obstacle to agreement in mediation goes by the name “reactive devaluation”: the tendency on the part of an adversary to assume that anything proposed by the other will be to his disadvantage. A companion problem is the widely observed tendency of adversaries is a willingness to accept some amount of loss in order to avoid or lessen any gain by the opposition. Mediators help diminish these negatives by trying to change an adversarial atmosphere to one of collaboration. Attorneys negotiating for clients can similarly impact these obstacles through patient listening, asking questions that clarify, not belittle, and showing a considerate recognition of the opposition’s interests and incentives. This approach, improves communication, diminishes distrust and resentment and paves the way for a more effective negotiation