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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