Where the Court of Appeal Went Wrong in Thottam Case

September 28, 2008 · Filed Under Mediation - General · Comment 

As preparations are underway on a petition for review to the Supreme Court of California, and having had a chance to read the appellants’ petition draft,  this Nevada County mediator is able to provide a little more insight into what went wrong and why the Supreme Court of California (I never refer to it by the demeaning name favored by cooler cats: “the Supremes”) should review and reverse the 2nd District Court of Appeal in the consolidated matters of In re Estate of Thottam, and Thottam vs Thottam, Case No. B196933, (2008 Daily Journal D.A.R. 10,570)  See earlier blog on Thottam.

During the mediation the parties reached what one of them would claim was an agreement and the others that it was not intended as a final or admissible agreement (a handwritten chart assigning certain assets to each of the parties), but was subject to further consideration and only potential inclusion in a final and formal written agreement.  (It is only a distraction that the party claiming it was a done deal was found to be not believable and dishonest by the trial judge, and that the appellate court thought he had been prejudiced by the exclusion of the chart.)  The trial judge refused admission of the chart into evidence on the grounds that admission was barred by the confidentiality provisions of Evidence Code 1119 and did not meet any of the exceptions of Section 1123.  He refused to regard a pre-mediation agreement that said the proceedings would be confidential except as necessary to enforce an agreement reached in the mediation as sufficient compliance with the statute.  That was a sensible conclusion as you will see.

Subsections (a) and (b) of that statute requires that to be admissible an agreement reached in mediation must contain language to the effect that it is to be binding and/or admissible in evidence.  Such language would make it clear that the parties intended an identifiable document to be free of the confidentiality constraints of Section 1119.  It would not make sense to hold that a pre-mediation agreement could satisfy those two subsections.  However, subsection (c) provides that “the” agreement can be admitted if all parties to it expressly so agree.  The Court of Appeal held that in view of the fact that subsection (c) does not contain a “time requirement”, the pre-mediation language was operative.  Bear in mind that nothing is said in the statute about a pre-mediation agreement clause, nor should it have.  Before the mediation there is little likelihood that the parties will all have agreed on exactly what an “agreement” will look like.  It is only after mediation that the question can be sensibly asked and answered:  “Has an agreement been reached and documented”.  This will be ascertained easily if either subsection (a) or (b) has been invoked by inclusion of the “binding” or “admissible” language.   An alternative way the existence of an agreement can be ascertained is if per subsection (c) “all parties to the agreement expressly agree” to its admissibility in evidence.  The near obvious and only logical interpretation of Section 1123 is that the legislature gave the parties an easy way to make their agreement admissible, but also protected the situation where all parties wanted it to be admissible even though they had failed to invoke (a) and (b).

The Court of Appeal here has read another alternative into the statute, to wit, if the parties agree in the pre-mediation agreement that the agreement reached in mediation shall be enforceable and free of the confidentiality provisions, then it will be admissible.  But, what does “it” refer to?  What is “the” agreement”?  How does the court ascertain whether an agreement was in fact reached?  The inexorable answer to each of these questions is that there is only one way, and that is to violate the very law and rule of confidentiality it is supposed to apply!  How can a court admit testimony of what went on in a mediation, what was intended by a writing created in the course of mediation, or whether all of the parties agreed that in its present form it was to be admitted in evidence and enforced, without violating Section 1119, which states clearly that neither oral communications within a mediation or such documents created in the course of it are admissible.  The California high court has consistently ruled that there are no exceptions that permit delving into the substance of mediation communications for such purposes.  The Court of Appeal in this case not only ignored its superiors, but the rational interpretation of the statute as well.

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

« Previous Page