Is Your Mediation Settlement Agreement Admissible? Enforceable?       
by David I. Karp

(Editor's note: The scope of this article is limited to mediations conducted under California Law)

With Alternative Dispute Resolution now in vogue, many of us struggle to get our clients to accept mediation. In mediation, we urge them toward resolution, tantalizing them with privacy, self-determination, hope and the reward of a managed end to the struggle. We strive for a written settlement agreement that will end the case. We suggest that the parties, in doing the things they are supposed to do (e.g. paying), are more likely to respond to a written agreement they controlled than a judgment they did not.

For our own benefit, and our clients', we also want to build in protections in the event of breach. We want to be able to return to court if the agreement is unfulfilled. Under the current governing statute, we have to anticipate inadmissibility and perhaps unenforceability unless we add protective language to the agreement. Here are two Evidence Code Sections to consider.

Evidence Code section 1119 [Written or oral communications during mediation process; admissibility] provides:

Except as otherwise provided in this chapter:

(a) No evidence of anything said or any admission made for the purpose of, in the course of', or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.

Evidence Code section 1123 [Written settlement agreements; conditions to admissibility] states:

A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied:

(a) The agreement provides that it is admissible or subject to disclosure, or words to that effect.

(b) The agreement provides that it is enforceable or binding or words to that effect.

(c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure.

(d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

My solution has been to draft these provisions into Settlement Agreements to be used in mediation:

"Consistent with Evidence Code section 1119, the parties hereto agree that this agreement is and shall remain confidential, except that the parties further agree that there is no expectation of confidentiality, and the parties hereby knowingly, intelligently and voluntarily waive such confidentiality as to this instrument and the facts and circumstances surrounding it, if any question arises as to its validity or enforceability, including but not limited to questions arising, if any, as to knowing consent as to its terms."

Also,

"The parties agree that this settlement agreement is binding and enforceable pursuant to Code Civ. Proc. § 664.6 or any other means authorized by law."

This language is untested but is at least an attempt to grapple with the possibility that a mediation settlement agreement will be inadmissible and unenforceable, notwithstanding breach, under Evidence Code sections 1119 and 1123.

Biography     

David I. Karp has a mediation in Van Nuys, CA, and is available for court-ordered and private mediation. He is listed in the Martindale Hubbell Bar Register of Preeminent Lawyers and can be reached at 818-781-1458.

Author's Website: http://karpmediation.com