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Don't Like Mediation Confidentiality? Hold a Settlement Conference Instead

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December 05, 2008


Here in California, there's no stronger rule of confidentiality than that applied to a mediation. It cannot be impliedly waived like most privileges, including the near-sacred attorney-client privilege. Simmons v. Ghaderi, 2008 DJDAR 11107. You cannot be estopped from relying on it. Eisendrath v. Superior Court, 109 Cal.App.4th 351 (2003). And if you want your mediated settlement agreement enforced, you must strictly comply with the requirements of Evidence Code Section 1123. Fair v. Bakhtiari, 40 Cal.4th 189 (2006).

Insurance policy-holder counsel Kirk Pasich of Dickstein Shapiro has criticized nearly all recent interpretations of mediation confidentiality by the California Supreme Court on the ground that they permit insurance carriers to use mediation proceedings to engage in acts of bad faith.

"Why should a carrier get a license to act in bad faith in mediation," Pasich asked, adding, "Cases settled, and still settle, in mandatory settlement conferences without that same shield. I don't think a process should exist that encourages, rather than discourages, a party from acting in bad faith."

Why, indeed?

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If you do not understand the differences between settlement conferences and mediations, you are not alone. My informal surveys indicate that litigators believe there's no difference whatsoever between the two and few mediators are able to distinguish between them despite their training in the field. Nor have California's courts been of any real assistance.

What's in a name? Here, plenty. The application of California's Rules of Evidence to mediations has such significant potential economic consequences that mediator and litigator malpractice actions are surely looming on the horizon.

What type of misbehavior can occur in a mediation? Here are just a few examples: One party can make a misrepresentation of material fact on which the other relies in entering into a settlement agreement; as Pasich notes, an insurance carrier can act in bad faith; one mediating party could tortiously interfere with a third party's contract or prospective economic advantage; or the mediating parties can enter into a collusive settlement agreement, depriving the settling parties' co-defendants from learning facts necessary to challenge the settlement in a good faith hearing.

Even if all parties have expressed complete agreement during the mediation, which they then memorialize in a term sheet, absent strict compliance with the requirements of Evidence Code Section 1123, no evidence probative of that agreement will be admissible in a California court.

If the mediating parties are engaged in a settlement conference, none of this potentially bad behavior would be protected.

Given the potentially significant adverse economic consequences that can flow from a mediation, California's courts have clarified the differences between the two procedures, right?

Not so much.

About the Author:
After a 25-year career in complex commercial litigation and trial work, Victoria Pynchon, author of the Settle It Now Negotiation Blog and founder of the IP ADR Blog, became a full-time attorney-mediator. Ms. Pynchon received her LL.M. in Conflict Resolution from the prestigious Straus Institute and her law degree, Order of the Coif, from University of California at Davis King Hall School of Law . Ms. Pynchon mediates the same type of complex commercial case she litigated for more than a quarter century with such firms as the Philadelphia-based Pepper, Hamilton; the Los Angeles-based Buchalter, Nemer and the San Francisco-based Hancock, Rothert & Bunshoft (recently merged with Duane Morris) She is a neutral for the Southern California ADR firm, Judicate West and serves as a mediator on her own specialty ADR panel, Settle It Now Dispute Resolution Services
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