Solving Drug Issues in Mediation

October 1, 2012 · Filed Under Mediation - General · Comment 

In my previous post we supposed a partnership conflict in which Jim insists upon terminating Dan’s partnership share because Dan’s sales team has been losing customers and have revealed that Dan is using cocaine and methamphetamine. Caught out, Dan has admitted his conduct, agreed to a psychiatric exam resulting in a diagnosis of “drug abuse disorder” (see previous post for details) As the mediator you will be more helpful if you know a few basics. There is a difference between drug abuse disorder and addiction, or as it is called in DSM IV (Diagnostic and Statistical Manual latest, edition) “substance dependence”.

The former is characterized by distress within a 12 month period as manifested by one or more of the following: recurent use resulting in failure to fulfill a major role or obligation; recurrent us in situations in which is is physically hazardous to do so; recuring use related legal problems; or continued use despite persistent or recurring social or interpersonal problems.

Addiction or substance dependence is an uglier monster. It is defined as a maladaptive pattern of use leading to clinically significan impairment or distress as manifested by three of the following within a 12 month period: tolerance, meaning the increasing need for more to achieve the same intoxication level or diminished effect from the same amount; suffering typical withdrawal or using a drug in order to avoid withdrawal; use in larger amounts or over a longer period than intended; a persistent desire without success to cut down or control the use; a lot of time is spent obtaining the drug, using it, or recovering from its effects; important activities are given up or reduced because of use; or use is continued despite knowledge it is causing physical or psychological problems.

In open session you ask if there is agreement between the parties on the meaning of what the doctor reported. Jim says: “The guy is addicted. I’m sorry, but meth addiction is permanent. He might get treatment but I would never know whether he might start using again and cause the company some serious damage.” What about you Jim, do you agree? “No, I am not an addict. I know I shouldn’t have been using when it interfered with my job, but I am not going to do that anymore. The doctor opened my eyes.” Knowing what you know about the differences you can pursue this issue further in separate caucus. You don’t want to correct Jim in front of Dan and look like you are taking sides. In caucus you might say: “Jim, I believe the medical profession has a different vies of Dan’s problem. I don’t take Dan’s side here, but unless I am mistaken you will likely find on further inquiry that Dan’s abuse is not addiction and that it is very treatable.” It might be necessary at this point to adjourn for further investigation of the nature of Dan’s problem. Hopefully, the doctor’s report recommends specific methods of treatment. During open session Dan commented: “If I have to, I will start attending Narcotics Anonymous. That should end this whole discussion”. Notice the words: “If I have to….” They indicate that Dan is feeling coerced toward treatment. Studies have shown that the N/A 12 step program does not have a high level of success in treating coerced patients. What little data there is suggest a high drop out rate for coerced patients very early in the process and not a high rate of completion for those who stay longer. You will not want to tell Dan his idea is no good, but a better solution might be for him to meet with the doctor for a specific discussion of treatment options and their success rates.

Meth and cocaine users can quit on their own without treatment and a high percentage of meth abusers are successfully treated. Jim should take this into consideration. An agreement that would keep Dan aboard might include a period of time when Dan stays out of the business for a period of weeks while he gets treatment and demonstrates through testing that he has achieved sobriety, followed by a schedule of testing. If such a famework could be agreed to, Jim can be protected with contractual clauses concerning Dan’s compensation and profit sharing during these periods and at certain check points thereafter. Depending upon the severity of the situation and Dan’s demonstration of determination to get and stay sober, there are any number of possible negotiated arrangements to protect Jim and the business and to keep Dan’s valuable talents as well as to restore the erstwhile good relationship between the partners.

Dan’s problem was abuse disorder. The medical profession calls addiction “substance dependence”. Addiction, in other words, is not a mere disorder, it is a brain disease. It is however treatable. Confronted with an addiction problem in mediation the mediator must be careful not to speak of “dependence” in the same way s/he might about abuse disorder. Without a professional medical diagnosis the lay person should not toss these terms around or make assumptions about what is needed either in treatment or in crafting a dispute resolution agreement that deals with the issue. I strongly recommend that the parties be urged to obtain a definitive assessment and treatment recommendation from a specialist, before attempting to arrive at a final agreement, unless the economic/legal ramifications in the particular circumstances would not be materially affected by a mistaken diagnosis.

Drug Issues in Mediation

September 22, 2012 · Filed Under Mediation - General · Comment 

In the 1940s your grandparents were singing along with Peggy Lee the still popular lyrics, “I know a little bit about a lot of things, but I don’t know enough about you. The coda to that song describes mediators:

I know a bit about biology, A little more about psychology, I’m a little gem in geology,But, I don’t know…etc.

One of the features of a really good mediator is an ability to bring wide ranging bits of information together in order to get to know enough about a mediation client very quickly. In order to pierce the body armor of the self-absorbed litigants and ask the questions needed to get to their real interests it takes a little time and a lot of human understanding. That is why we tend to know a little bit about a lot of things.

Drug issues may arise in a variety of different civil disputes such as employment, trust estates, and partnership cases among others. There is a good deal of misinformation abroad about drug abuse, addiction and drug treatment that can taint the attitudes of both the clients and the mediator.

Let’s consider a scenario. Dan and Jim formed a partnership a few years ago for the sales of computer chips custom configured for use in customer new product designs. Each headed a staff of representatives for whom they provided engineering backup and support. In recent months there had been a number of complaints about delays and miscommunications by customers of Dan’s team. Dan was in complete denial, but Jim learned from some of his reps that Dans group had grown dispirited and believed that Dan was using cocaine or methamphetamine or both. Through a series of investigative steps this was confirmed and Dan Finally admitted he had been using, but was sure he could and would correct his behavior. Still he eventually agreed to a psychiatric assessment when Jim threatened a dissolution action. The report concluded that Dan had a “drug abuse disorder”. Now Jim was even more upset and demanded that Dan agree to a buyout. Dan refused and mediation was commenced in accord with their partnership agreement. You are the mediator.

Do you know what a drug abuse disorder is? Can you distinguish it from a drug dependence disorder? Do you believe as Jim did that no one recovers fom addiction to methamphetamine? Do you believe as Dan does that all he needs to do is join a narcotics anonymous group for treatment? What facts contained in the psychiatric report would you be looking for as likely helpful? What provisions might be best included in a settlement agreement that would allow Dan to stay on board?

In my next post on this topic I will offer some answers to these questions. How much trouble is Dan in? Hint: Among the myths about mehtamphetamine addiction is that only 6% will achieve sobriety. Studies in four different states have shown substantial periods of sobriety following treatment for 65% to 88% of meth patients. The picture is not as bleak as often thought.

I am well along in the writing of a book on the topic of our counterproductive national drug policy and a workable plan to change it. Needless to say (but I willl say it anyway) I have been doing a lot of reading and thinking about drug abuse and treatment and look forward on this site and a separate blog site which I am developing to sharing with my colleagues a useful array of facts and insights on drug related topics.

As for the song: today Diana Krall does a dynamite rendition.

Speaking to the Opposition

November 16, 2009 · Filed Under Mediation - General · Comment 

Many attorneys  coming to mediation beg off from the usual joint session approach of most mediators including “yours truly” out of a fear that direct confrontation is likely to result in counterproductive anger and hostility.  This concern has merit for it is based on experience with the tendency of lawyers to present their arguments in adversarial form.  “The defendant was in gross violation of the law”  or “if this case goes to court we will show that plaintiff has exaggerated…or lied about…, etc.”  If you sit down across the table and say I (or my client) did such and such only because you (or your client) refused to be reasonable, or acted irresponsibly”  why wouldn’t you expect the opposing party to begin to boil?  Likewise if you claim the other side has exaggerated or fabricated facts.  If you carry your adversarial zeal into the mediaton room you can expect to trigger anger and the opportunities offered by the joint session may be largely or completely lost.  See “Getting Outside the Litigation Box Through Better Negotiation” at the Articles tab.
My suggestion is that you confer with opposing counsel ahead of time and suggest a cooperative, communicatiive, non-confrontational approach during joint session in order to avoid inflaming passions, and during joint session to manifest a polite and sincere interest in finding common ground. Where it is necessary to say potentially inflamatory things about the other party, couch them in terms of “the information that we have suggests…” or “we realize you (other party) have a different perspective on this, but so you will understand where we are coming from ….” Each attorney will have an individual approach, and may come up with better formulations, but by using active listening and a diplomatic approach you promote a productive joint session. Dave Finch

THE CONFIDENTIAL MEDIATION BRIEF

July 17, 2009 · Filed Under Mediation - General · Comment 

Fine and experienced lawyers come to mediation having submitted an elaborate and highly informative brief to the mediator alone!  What is the rationale for this practice.

I speak here not of those cases in which a litigant deems it necessary to keep his trial strategy close to the vest, or in which it might be deemed unwise to inflame the passions of the opponent by incriminating information that the mediator is wanted to know about.   No, here I speak of the run of the mill controversy in which the parties simply have a different understanding of the facts and/or the law, and where communication between them of their respective thoughts on the matter might well bring them into agreement.

It should always be borne in mind that at the heart of mediation is negotiation, and the soul of negotiation is communication.  If one comes to mediation intending to let the mediator do all the communication with the other side for him, he will not be heard to complain if it is done with less passion, less clarity, less legal authority than a well crafted and supported brief can do it.  See my article on negotiation, under Articles.

The confidential mediation brief is rarely necessary and misses an opportunity to communicate effectively with the opposition.

Elder Mediation and Bio-ethical Mediation

May 1, 2009 · Filed Under Mediation - General · Comment 

By Dave Finch

Few disagreements there are whose resolution cannot be aided by mediation and those involving the care – medical as well as financial – of the elderly are certainly not among them, though the field of elder mediation has been slow to gain traction.    Elder mediation or guardian/conservatorship mediation as it might sometimes be called is now recognized as an important, valuable and needed service field.

The term, Elder Mediation, is to be preferred because, while it encompasses those issues commonly dealth with the formal legal structures of guardianship and conservatorship, issues commonly arise in which troubling conflicts arise that can be resolved without court intervention and to the more tailored satisfaction of all concerned.

One of the more common situations calling for mediation is when family members differ  among themselves or with the elder on the right course of action for the elder to take in managing her resources, putting the elder in the uncomfortable, often confusing, position of having to choose one loved one’s preferred approach over another’s or of refusing the proffered advice of one.  These situations arise it seems most often when the differing opinions are arrived at without sufficient understanding of the best interests of the elder or without sufficient decision making skills.  A mediator schooled in ferreting out essential interests, often not fully understood by the elder herself, and in identifying poorly understood biases of conflicting parties, can help the parties hear each other more clearly, consider needs and interests previously overlooked, identify any outside help that would ease resolution, and find a harmonizing solution that is the truly best for the elder.

This kind of mediated approach is uniquely helpful in what has come to be referred to as bio-ethical mediation, in which the neutral aids the communication process in conflicts involving the elder’s medical care.  Here again family members may take positions on what care should be given the dangerously ill or terminally ill elder without separating their own agendas from the better solution.  Often conflicts arise between doctor and patient, where, for example, the doctor does not feel the patient has sufficient understanding to accord him autonomy in treatment decisions.  Conflicts also may arise between nurse and doctor, hospital administration staff and treatment staff, and between  doctors of differing viewpoiints.  Achieving agreement here on what best serves the interests of the patient is a paramount consideration and the mediator may be the essential instrument for the protection of those interests.

Fairness And Charity As Value Propositions

February 5, 2009 · Filed Under Mediation - General · Comment 

 By Dave Finch

Successful negotiators come in various packages, but a nearly common denominator of this species is concern for the appearance in any proposal of fairness, or at least, that any appearance of unfairness be diminished as much as possible.  Fairness or the perception of fair treatment can be hugely important whenever one side to a controversy attempts to sell his proposed resolution to the other.

Exactly why this is so may as well as any other explanation be attibuted to primordial needs resulting in a conditioned response.  Sharing of food and resources by our primitive ancestors made economic sense.  If my cousins are healthy and motivated they will do their share of the hunting and gathering and battling of hostile tribes.  Over time these practices might have developed a moral sensibility.  He who shares, if not exactly equally, at least in a way perceived as sufficiently equitable, is righteous and trustworthy and deserving.  I rarely mediate a case without seeing this heuristic at work.  There is usually an emotional reaction to any proposal that seems not only inadequate to the goal of resolution but “unfair” in concept, and the negotiation is often set back and troubled until the unfairness wrong appears to have been righted.

 Relatedly, the opportunity to be charitable is also a value proposition.  Studies have shown that the brain activity that occurs in relation to  performing a charity is not one whit different from that which occurs when we get paid for completing a task.  Adam Smith put it this way in his The Theory of Moral Sentiments:  “How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of  others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it”.

This feature of human nature will often have implications in negotiation.  A person being asked to pay or otherwise give up something might be  persuaded to see the proposal not as greedy unfairness on the part of the other, but as an opportunity to do a charity to meet a legitimate need.  To the extent this might be possible it certainly depends upon tactics that include demonstating concern for the other party and his interests, and an earnest search for the fairest outcome.  In other words, the communication process will have to be infused with good will.  Wow!  Has anyone ever seen this happen before, the skeptic oppugns?  The answer is, yes.  Perhaps not frequently, especially when anger and resentment have been provoked in litigation.  But, the negotiator should not rule out the possibility of taking advantage of this humanly natural tendency. 

 

 

 

 

 

 

 

 

 

 

 

Paying Attention in Negotiation

January 26, 2009 · Filed Under Mediation - General · Comment 

At the risk of criticism for offering hearsay upon hearsay, I would like to briefly discuss the findings of Dr. Torkell Klingberg, a neuroscientist in Stockholm as described in a review of his book “The Overflowing Brain” by reviewer, Christopher Chabris, psychology professor at Union College in Schenectady, N.Y.

Now with all that out of the way, I turn to the subject of “active listening” as it relates to participation in mediation, and, for that matter, in any negotiation.  A common observation of and the subject of attempted correction by facilitative mediators is that the parties are poorly or not at all focussed on what the opposing party is saying in the presentation of his point of view on the case.  Instead of actively listening, the silent party may be looking at notes, observing activities on the outside of a nearby window, whispering to her client,  or just looking down in an effort to concentrate on what she is going to say when it becomes her turn.  Even when the silent party is actually listening to the speaker she may not be taking in much, or differentiating between the valid points and the erroneous.  Consider, what Dr. Klingberg’s findings show according to Dr. Chablis:

Working memory is so fugitive in part because it is encoded in the activity of brain cells. As we try to remember a new phone number, neurons in our frontal and parietal lobes are firing away. (By contrast, the long-term memory of, say, where we last parked our car is encoded in the strength and topography of connections between neurons in the occipital and temporal lobes.) Attention works the same way: Neurons increase their activity as we concentrate on an object or task, and they slow their firing when something else intervenes. It is true that the brain can accomplish many things at once (we can drink coffee and listen for a train station to be announced while we read the morning paper), but it can only pay careful attention to one at a time. Indeed, attention is so precious that it is easily depleted — even when the added task (such as talking on a cellphone) superficially seems to be completely independent of the primary one (driving a car).

If one accepts, as I have argued elsewhere (a near obvious truth) that to negotiate effectively one must understand the opposition argument as well as the opposition does, then to fail to take those steps which aid us in doing so seems irresponsible.

What are those steps?  Active listening is a time worn phrase, often not fully understood.  It means leaning in with full attention given to the speaker.  It means interjecting polite questions from time to time in a way that clarifies what is being said.  It often involves taking some brief notes which will be used later in revisiting the speaker’s points.  And when the speaker ends, being able to repeat back to him each and all of the points essential to his argument.  This conduct is not only valuable as a way to show respect and attention which one hopes will be reciprocated.  It also reflects a confidence in one’s own argument to meet and overcome that of the opponent.  Then when it becomes the listener’s turn to present, the presentation is apt to be more impressive for its demonstration that the opposition points have been duly considered and found wanting.

“Touchy Feely” Mediation Ain’t

December 11, 2008 · Filed Under Mediation - General · 7 Comments 

A number of years ago we often heard mediation described by case hardened negotiators as “touchy feely”.  Over these years a probable majority of those cynics have come around to an appreciation that mediation  need not be anything of the sort, and in fact, as practiced in court connected cases around the country, it nearly never is.  Mediation by trained and experienced litigation resolvers has been widely embraced as second only to direct negotiation in which the disputing sides are willing to communicate in a productive dialogue aimed at finding resolution.  The benefit of mediation is of great value in all situations where the skills of the mediator can help to establish a constructive communication process, and help the parties minimize the effects of those human biases and heuristics that interfere with that process.

Even in community mediation where volunteers work with unrepresented parties to help them understand and find solutions to their conflict, a realistic and businesslike negotiation is generally more effective than merely “making nice”, and court connected mediations are arrayed along a spectral line from friendly to fist in the face toughness, but with the vast majority centered in no nonsense negotiation.

In a well written article published at www.mediation.com titled “Not Even Wrong”, Wayne State ADR teacher and provider, Barry Goldman calls attention to the typical textbook blather about peaceful mediators bringing peace into the room and such nonsense, and suggestions that untrained mediators can be sufficiently effective because there is something about the process, separate from technique or theory, that explains positive results.  His argument is that just because there is value in the process, does not mean that mediators need merely be pure and “at peace”.   He compares we modern mediators with early physicians, some of whom got good results and some not so good,  with hit and miss theories of the science of curing illness.  “All the vast literature on ‘mindfulness’ and ‘presence’ and inner peace, the advice that mediators need to meditate and center themselves before and during their mediations, is deluded in just the way that the physician is deluded who fasts and prays instead of washing his hands.”

Well said, Barry.

Here is the CDRC Letter to the Court

November 3, 2008 · Filed Under Mediation - General · Comment 

 The following letter was sent today by Jim Madison on behalf of CDRC.

 

 

November 3, 2008

 

Chief Justice Ronald George

                                    and Associate Justices

California Supreme Court

350 McAllister Street

San Francisco, CA 94102-3600

 

                                    Re:  Estate of Thottam  Supreme Court No. S166943

 

Dear Chief Justice and Associate Justices:

 

This letter is written on behalf of the California Dispute Resolution Council pursuant to Rule 8.500(g)(1) of the California Rules of Court (”CDRC”) as amicus curiae with regard to the Petition for Review of the above-described case.

 

The case concerns mediation confidentiality, a vital characteristic of mediation, which has been upheld by this Court on four previous occasions.

 

The particular statutory aspect of mediation confidentiality that is at issue in this case is Section 1123 of the Evidence Code, which specifies circumstances under which agreements reached in mediation may be admitted in evidence as exceptions to the confidentiality established by Section 1119, and more particularly Section 1123(c).

 

The Court of Appeal decision held that a “chart” which failed to satisfy any of the requirements of Section 1123(c) to qualify as an exception to Section 1119 was nevertheless admissible in evidence.  The chart was not described by the parties as a written settlement agreement, it was not signed by them and it was not the subject of a written or oral agreement that it should be admissible in evidence pursuant to Evidence Code.

 

The Court of Appeal held that it was sufficient for the parties to have agreed at the outset of their mediation meeting to except from confidentiality “all matters . . . necessary to enforce any agreements resulting from the Meeting” and for the chart to be susceptible of being regarded as an agreement.

 

If allowed to stand as precedent, the Court of Appeal decision will have created a significant judicial exception to mediation confidentiality,

contrary to the prohibition on such exceptions established by this Court in

 

 

 

 

Chief Justice George and Associate Justices

November 3, 2008

Page 2

 

its previous decisions.

 

For the reasons set forth below, the CDRC urges that the case either be accepted for review and reversed or ordered not to be published in the Official Reports.

 

INTEREST OF THE CDRC

 

The CDRC is a nonprofit membership corporation which was organized in 1994 to advocate for fair, accessible and effective alternative dispute resolution processes before the Legislature, state administrative agencies and the courts.  The membership of the CDRC consists of several hundred individual ADR neutrals, as well as community dispute resolution organizations and providers of ADR services, which, taken together, represent more than 15,000 mediators and arbitrators in California.

 

One of the first actions of the CDRC after its organization was to formulate and in 1995 to adopt a set of Dispute Resolution Principles which have governed its advocacy throughout its history.  Among other matters, these Principles provide that no oral or written statement made in connection with a mediation should be admissible in evidence in any adversary proceeding.  In keeping with its Dispute Resolution Principles, the CDRC worked actively with the Law Revision Commission and the Legislature on the mediation confidentiality legislation which resulted in Evidence Code Sections 1115, et seq. As a matter of practice, mediators in California have come to assure mediation participants that, except to the extent specifically provided by Evidence Code Sections 1120 -1123, anything that is said or written in or for a mediation will be protected by mediation confidentiality.  Under Rule of Court 3.854, this practice is mandatory in court-connected mediations.

 

Pursuant to leave granted by this Court, the CDRC has previously filed briefs as amicus curiae arguing in support of mediation confidentiality in Foxgate Homeowners Ass. v. Bramalea California, Inc. (2001) 26 Cal. 4th 1, Rojas v. Superior Court (2004) 33 Cal. 4th 407, and most recently in Simmons v. Ghaderi (2008) 44 Cal. 4th 570. 

 

 

 

 

 

 

Chief Justice George and Associate Justices

November 3, 2008

Page 3

 

The perspective of the CDRC is different from that of the parties, and it is  not allied with or retained by either side.  Its interest in submitting this letter is its belief that protection of mediation confidentiality requires that the Court of Appeal decision not be allowed to stand as precedent. 

 

WHY THIS COURT SHOULD INTERVENE

 

Evidence Code Section 1123 provides an exception to mediation confidentiality for a document that satisfies two basic conditions and any one of four subsidiary conditions.  The document first must be a “written settlement agreement.”  Secondly, the document must be “signed by the settling parties.”  And finally, the document must satisfy one of Sections 1123(a), (b), (c) or (d).

 

In Fair v. Baktiari, 40 Cal. 4th 189 (2006), the effort to convert a so-called “term sheet” document signed at a mediation conference into a formal settlement agreement revealed that the parties had different understandings of what supposedly had been agreed to, i.e., that they had not reached a genuine meeting of the minds.

 

This Court held that the term sheet did not satisfy the exception to mediation confidentiality specified Section 1123(b).

 

In Fair the Court wrote that that, in order to satisfy Section 1123, a “writing must make clear that it reflects an agreement and is not simply a memorandum of terms for inclusion in a future agreement.”  This is because Section 1123 was intended to aid in the enforcement of agreements, not to facilitate disputes over whether an agreement was reached. 

 

In the present case, there is unquestionably a difference between the parties over whether an agreement was reached.  One of the parties sought to have the “chart” which is at issue admitted in evidence in order to prove, not only that an agreement was reached, but also that the agreement was supposedly reflected in the chart.   Others disputed these contentions.

 

If the decision of the Court of Appeal is allowed to stand, a judicial

exception to mediation confidentiality will have been created in addition

 

 

 

 

Chief Justice George and Associate Justices

                        November 3, 2008

Page 4

 

to the exceptions specified in Section 1123.

 

As an essential first step to being excepted from mediation confidentiality under any of the subsections of Section 1123, there must be a written settlement agreement.  No word or phrase remotely resembling “agreement” appears in the disputed chart.  For all that can be known, the disputed chart may have been nothing more than a hypothetical allocation of the disputed assets, assuming that an overall agreement could be reached. 

                       

By inferring the existence of an agreement in this case despite the spirited disagreement between the parties, the Court of Appeal decision would allow precisely what Section 1123 was designed to avoid, as recognized in Fair.  The Court of Appeal decision would permit disputes over settlement agreements to “erupt in litigation, avoiding the process of resolution in mediation.”  The error is manifest in the Court of Appeal’s conclusion that the disputed chart should be admitted in evidence, not for enforcement as a settlement agreement, but to aid in resolution of a dispute over whether an agreement had been reached.

 

A second essential characteristic of a written settlement agreement that is to be excepted from mediation confidentiality under any of the subsections of Section 1123 is that it be “signed by the settling parties.”  The Court of Appeal decision in this case ignored this requirement.

 

Finally, as recognized in Fair, the parties are required to express their agreement “to be bound by the document they sign.”  The requirement that parties must sign the particular document sought to be excepted from mediation confidentiality was evaded by the Court of Appeal decision in this case.  The court accepted as sufficient compliance with the statutory requirement a mediation agreement signed by the parties at the outset of the mediation conference which purported to except from mediation confidentiality any matters “necessary to enforce any agreement resulting from the Meeting.”  Accepting what might be regarded as a blank check in lieu of subscription to the particular document at issue would subvert Section 1123(c) in particular and Section 1123 in general and allow virtually any document alleged to be a settlement agreement to be admitted in evidence contrary to Fair.

 

 

 

 

Chief Justice George and Associate Justices

November 3, 2008

Page 5

 

The vice in the Court of Appeal decision with respect to admissibility of the chart was compounded by its apparent allowance of testimony about what transpired in the mediation on the theory that the blank check agreement constituted an “exception to the mediation privilege.”  In addition to once again making clear that the carefully crafted mediation confidentiality legislation, including Evidence Code Section 1123, is not open to judicial exceptions, this Court should remind lower courts that, as recognized in Simmons v Ghaderi (2008) 44 Cal. 4th 570, mediation confidentiality requires the exclusion of evidence as a matter of public policy and not as a matter of evidentiary privilege.

 

CONCLUSION

 

Because the Court of Appeal decision would create a significant judge-made exception to mediation confidentiality if allowed to stand as precedent, this Court should either accept the case for review and reverse it or order that the Court of Appeal decision not be published in the Official Reports.

 

                                                                        Sincerely,

 

 

                                                                        James R. Madison

                                                                        Past President and

Chair, Public Policy Committee

 

cc:  Clerk, Court of Appeal, Second Appellate District

                              Clerk, Los Angeles Superior Court

                              Stephen Kaplan, Esq.

                              Tyna Orren, Esq.

                              Andrew Jablon, Esq.

       

Amicus Briefs In Thottam Case

November 3, 2008 · Filed Under Mediation - General · Comment 

Letter briefs are being filed by the California Dispute Resolution Council (CDRC) and by Ivan K. Stevenson, dba Confidential Mediaton & Dispute Resolution (CMDR) as amicus curiae.  CDRC, as you may know is the prominent and highly respected statewide organization established nearly two decades ago for the purpose of watchdogging the California legislature on legislation affecting the practice of mediation and arbitration with a view to promoting responsible and effective legislation.  CDRC has intervened as amicus effectively in most of the Supreme Court cases affecting mediation confidentiality.   Mediator Stevenson is a  mediator and lecturer on mediation confidentiality who has participated in an amicus role in Rojas v. Superior Court (2004) 33 Cal.4th 407, and Simmons v. Ghaderi (2008) 44 Cal.4th 570.  Other organizations may be joining in as well.  Every litigator, negotiator and mediator in California will be affected if Thottam is allowed to stand as a published opinion, for it destroys the reasonably bright line that existed between mediation achieved agreements and party alleged agreements that can only be discerned from information which heretofore has been deemed confidential.  The Thottam decision would allow the parties to create potential controversy by stating in a pre-meditation confidentiality agreement that deals reached in mediation are enforceable,  without providing a mechanism, as the statute does, (see previous post) for determining which deal was the agreed upon deal, or how an alleged deal is to be identified as an agreement reached.

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