Forrester on Real Estate Law : San Diego Real Estate Lawyer & Attorney : Kevin Forrester Law Firm : California, Carlsbad, La Jolla, Escondido

What do you and I mean when we say "all things considered?"

The weather, we say, is good, "all things considered;" a new car, we say, isn't bad, "all things considered;" a dinner, a movie, a vacation, a job, a new house, a day of the week, a month of the year, a year, a decade, an enemy, a friend, a family member, a city, a town, an old pair of shoes, all can be described with the words: "all things considered."

But what do we really mean?

Do we mean "all things considered" when we say "all things considered?" No. We mean the opposite. When we say: nice day, week, husband, wife, daughter, son, pair of shoes, "all things considered," we mean in spite of the weather, their criminal conviction, their tendency to lie, to tell the truth, to sell drugs, to buy shoes, or to hurt our feet. We mean to say all things not considered, and we mean to say we have considered those other things, too.

"All things considered" is a simple acknowledgment of the fact that life is not simple, that true perfection in life is nonexistent, that things might be better or worse for others, maybe most others, that things might be better for us, maybe a lot better, maybe a lot worse, but, given all of these irrefutable facts of which we acknowledge the absolute truth, we are accepting, no, pleased, no, thrilled, no, overjoyed with the current state of our life, the weather, this day, this pair of shoes, or whatever - all things considered - and we are looking forward to what tomorrow may bring.

Unless tomorrow brings a presidential election, an armed conflict overseas (whether or not we are a combatant), a lawsuit (in which we are a named party), a mediation conference (in which we may be required to acknowledge, as we already do in every other aspect of our lives, that certain facts take precedence over certain other facts), or any other circumstance in which we choose to pretend that all facts are created equal and, frankly, must all be considered.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

They say in Harlan County
There are no neutrals there.
You'll either be a union man
Or a thug for J.H. Blair.

Which side are you on, boys, which side are you on?

Which Side Are You On? was written by Florence Reece in 1931 and performed by Natalie Merchant in 2003.  Hat Tip to Scott H. Greenfield over at Simple Justice.

There are no neutrals in mediation. Mediators, although sometimes referred to as a "neutrals", are, indeed, advocates. We are just not your advocate.

"Which side are you on, boys?"

To the extent that your interests and those of your mediator correspond, the mediator is on your side, but no further.  Your mediator's goal and function and interest is in resolving your dispute with any opposing party on terms that you both, or you all, can accept; on that date, at that time, in the mediator's forum, but on your terms.  Mediators are not interested in preparing your case for trial.  We are interested in preparing your case for settlement.  Toward that end, we are advocates for the facts of the matter, and for a just, durable settlement based upon those facts, and for nothing else.

We are advocates for acting reasonably and truthfully and for achieving peace; and we acknowledge that lasting peace is not always achieved through settlement.

We are not advocates for "ties" or for achieving "neutral ground."  Mediation is not neutral ground.  It is a battleground existing under a white flag of truce, not surrender.  It is your last chance to choose to settle your case on your own terms, or not.  Mediators are there to help you choose wisely, and for no other reason.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We have learned that mediation confidentially is protected in California by contract law, by the plain meaning of statutory law, and by our highest state court’s confirmation that our statutory law means what it says. But what about our settlement agreements; what about the anticipated results of our mediations, are they confidential too?

The answer, as found by the Second California District Court of Appeal in the case of In re Estate of Thottam (2008) (PDF) 165 Cal.App.4th 1331, is that it depends upon the agreements of the parties and the plain meaning of the applicable statute.

Evidence Code Section 1123 provides that:

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.

In other words, a settlement agreement is "not made inadmissible" (is not confidential) if the agreement provides that it is admissible, the agreement provides that it is enforceable, the parties to the agreement agree to its disclosure, or the agreement is used to show fraud, duress, or illegality.

The importance of these distinctions was made clear in Estate of Thottam, which involved a dispute among siblings regarding the distribution of assets from their deceased mother’s estate. Before the mediation of this dispute, all three siblings and the mediator signed a “mediation and facilitation confidentiality agreement.”

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Everyone is entitled to their own opinion,
but not their own facts.

Senator Daniel Patrick Moynihan (1927-2003)

Durable settlements and wining trial strategies rest on a foundation of facts.

Your opinion of the opposing party will get you into the courtroom or the mediation conference room. But remember that the quality of your facts will determine the quality of your settlement or your litigation result, and plan accordingly.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

War is not an independent phenomenon, but the continuation of politics by different means. 

Karl (Carl) von Clausewitz (1780-1831)

The statement that 'war is a continuation of politics by other means' is important not because Clausewitz said it but because it reflects a fundamental reality.

Christopher Bassford, Clausewitz in English: The Reception of Clausewitz in Britain and America, 1815-1945, Chapter 4 (New York: Oxford University Press, 1994).

The fundamental reality of litigation, mediation, arbitration and trial is that each is a continuation of the other, and the best results in mediation are achieved by those best prepared for war.

Parties who attend mediation knowing the facts of their case, their likelihood of proving the facts that matter, their litigation budget, and their closing argument are more likely than not to settle. Your ability to secure a durable settlement increases in direct proportion to your readiness, willingness, and ability to fight. Mediation is not a place to find out the value of your case, it's a place to find out if you're going to settle the case you have.

To secure peace is to prepare for war.

Karl (Carl) von Clausewitz

Preparation secures peace in mediation by defining and enabling choices.

Your settlement should be an option, not a consequence of mediation.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The November 2007 "confidential means confidential" post on this site includes a link to attorney Michael Young's "Mediation Gone Wild" web page, which chronicles the consequences of breaching mediation confidentiality in the Florida case of Doe, et al vs. Joseph R. Francis et al.. "Girls Gone Wild" founder and defendant Joseph Francis has now filed suit in Los Angeles Superior Court to set aside the mediated settlement of that now almost 5-year-old case, and the CPR @ ADR Blog picks up the story with the rhetorical flourish:  "Travesty of Justice"?

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In 1984, the . . . Soviets were recruiting countries to retaliate for the United States’ decision to stay away from the 1980 Moscow Games, a boycott that 61 other countries joined. The Soviets announced on May 8, 1984, that their team would not come to Los Angeles because of fears for their athletes’ safety, claiming they had agreements from 100 countries to do the same.

Ueberroth said he saw the list. At the top was China.

His response was to assemble a team of envoys who could appeal to officials in undecided countries and persuade them to come. [Charles] Lee, a federal prosecutor in Los Angeles who is not Chinese but speaks fluent Mandarin, took a small group to China. Ueberroth asked a woman on his staff, Agnes Mura, to lead a group to Romania; she had been born there. Ueberroth went to Cuba.

“People think of the Olympics as a corporate structure,” said Bob Ctvrtlik, who played for the United States volleyball team at the ’84 Games and is now a member of the International Olympic Committee. “It really is not. It relies on relationships. It relies on trust. It relies on people who can cut through cultural differences and find common ground. That was the brilliance of that program.”

Ueberroth was unable to sway Fidel Castro — he keeps a framed copy of a headline from an article in The Los Angeles Times that read, “Ueberroth Strikes Out in Cuba.” But Lee’s visit was a triumph, and Mura delivered the perhaps more stunning news later in May that tiny Romania would defy the Soviet boycott.

Only 14 countries boycotted the 1984 Games.

Current U.S. Olympic Committee Chairman Ueberroth believes that China’s agreement to attend the 1984 Olympic Games in Los Angeles saved not only the 1984 Games, but all the ones to follow.

China’s attendance was obtained by intermediaries, through meetings, and conversation.

Peter Ueberroth achieved an Olympic victory through negotiation.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On July 21, 2008, the California Supreme Court confirmed for the third time that, in matters within the jurisdiction of California state courts, mediated in accordance with California law, confidential means confidential.

Simmons v. Ghaderi (2008) (PDF) 44 Cal.4th 570, concerned mediation of a medical malpractice suit. During mediation, the defendant’s medical malpractice insurance provider arrived at settlement terms with plaintiffs that were placed in a written settlement agreement for the parties to sign. The settlement terms were accepted by the plaintiffs both orally and in writing.  The defendant, however, revoked her consent to settle and left mediation without signing the agreement.

Plaintiff moved under Code of Civil Procedure section 664.6 to enforce what they contended was an oral settlement reached in mediation. The defendant argued that no enforceable settlement was reached because she had not signed the written settlement agreement and had withdrawn her consent to settlement. But she did not object to consideration of the evidence of what had occurred in mediation. The trial court denied plaintiffs’ motion to enforce settlement, finding that the requirements of CCP section 664.6 had not been met, and suggested that, alternatively, an enforceable oral contract may have been reached during mediation.

At trial of what was limited to the defendant’s alleged breach of a mediated oral settlement agreement, the defendant did object that California's mediation confidentiality statutes precluded plaintiffs from proving the existence of an oral settlement agreement. But plaintiffs’ evidence of what had occurred at mediation was admitted over the defendant’s objection and the trial court concluded that plaintiffs and defendant’s agent had, indeed, entered into a valid, enforceable oral contract before the defendant withdrew her consent. The Court of Appeal affirmed the trial court’s judgment, finding that the defendant was estopped from asserting mediation confidentiality by her own failure to object and her use in pretrial motions of the evidence of what had occurred during mediation.

In reversing this decision, the California Supreme Court unanimously found that the Court of Appeal had improperly relied on the doctrine of estoppel to create a judicial exception to the statutory requirements of confidentiality in mediation proceedings. Agreeing with the Court of Appeal’s dissenting opinion that this case is more accurately described as an implied waiver by conduct case, than an estoppel case, and finding that implied waiver does not apply to mediation confidentiality, the Supreme Court held, unambiguously, that:

"Here, the mediation confidentially statutes made inadmissible all evidence of an oral contract between plaintiffs and defendant during mediation."

Simmons v. Ghaderi (PDF) 44 Cal.4th at 588, emphasis added.

In California, confidential means confidential.

Copyright © 2008 by Kevin K. Forrester. All rights reserved.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The plaintiff in the case of Jay Lange v. Roxanne Schilling, et al. (2008) (PDF) 163 Cal.App.4th 1412, 78 Cal.Rptr.3d 356, ultimately spent over $113,000 in attorney fees to recover a $13,000 judgment, but failed to recover his attorney’s fees because he did not attempt to mediate his dispute before commencing litigation.

Paragraph 22 of the California Association of REALTORS (CAR) form purchase and sale agreement, used in this and the majority of California residential real estate transactions, provides the following attorney’s fees language:

In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 17A.

17A, however, is the critical paragraph of the CAR Agreement for the purposes of Mr. Lange and this post. 17A states, in pertinent part, that:

Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action.... If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.

(See Lange at 1414, emphasis added.)

The California Third District Court of Appeal, citing Frei v. Davey (2004) 124 Cal.App.4th 1506, 22 Cal.Rptr.3d 429, and other California cases held, bluntly, that “the agreement means what it says: plaintiff's failure to seek mediation precludes an award of attorney fees.” (Lange at 1414.)

(The Lange v. Schilling decision (PDF) was recently certified for publication, thanks to the efforts of the California Association of REALTORS.)

Copyright © 2008 by Kevin K. Forrester. All rights reserved.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In matters within the jurisdiction of California state courts, mediated in accordance with California law, confidential means confidential.

California mediation confidentiality is defined by contract law, statutory law, and common law.

Contract law, because most mediators require parties, their attorneys and others in mediation to sign an agreement before mediation commences that includes words to the effect that:

All statements made in preparation of or during the course of this mediation are privileged settlement discussions, are made without prejudice to any party's legal position, and are undiscoverable and inadmissible for any purpose in any legal, administrative, or other proceeding.

Statutory law, because section 1119 of the California Evidence Code states that:

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.

(See also Evidence Code Sections 1115 - 1128.)

And common law, because California appellate courts have held that the California Evidence Code means what it says.

Foxgate Homeowners’ Association, Inc. vs. Bramalea California, Inc. (2001) 26 Cal.4th 1, and Genoveva Rojas vs. Superior Court (2004) 33 Cal.4th 407, for example, are both early California Supreme Court opinions supporting the Legislature’s definition of mediation confidentiality. In the words of the court:

One of the fundamental ways the Legislature has sought to encourage mediation is by enacting several mediation confidentiality provisions. (Foxgate at 14.) As we have explained, confidentiality is essential to effective mediation because it promotes a candid and informal exchange regarding events in the past. This frank exchange is achieved only if participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes. To carry out the purpose of encouraging mediation by ensuring confidentiality, our statutory scheme . . . unqualifiedly bars disclosure of specified communications and writings associated with a mediation absent an express statutory exception. (Foxgate at 15.) Rojas at 415-416 (internal quotation marks omitted, emphasis added).

There are, however, and will continue to be, efforts to define, or redefine, or construe, or limit mediation confidentiality. In the recent case of William Wimsatt vs. Superior Court (2007) (PDF) 152 Cal.App.4th 137, the Court of Appeal upheld the broad standards of mediation confidentiality enacted by the California Legislature and protected by the California Supreme Court even though doing so, the court believed, may have prevented a party to the mediation from pursuing a legal malpractice lawsuit against his own attorneys. Accordingly, the Wimsatt opinion includes this comment by the Court of Appeal:

Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.

Until that day comes, or until the California Supreme Court permits the crafting of judicial exceptions to California’s statutory mediation confidentiality scheme, confidential means confidential.

(I commend to you the fine article by attorney Michael Young entitled "Mediation Gone Wild" chronicling the consequences of breaching mediation confidentiality in another jurisdiction.)

Copyright © 2007 by Kevin K. Forrester. All rights reserved.

• Email This
• Print
• Comments
• Trackbacks
• Share Link