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Confidentiality Update: Petition for Review filed with the California Supreme Court in the Estate of Thottam

by Jeffrey Krivis, Mariam Zadeh

From the First Mediation Blog of Jeff Krivis and Mariam Zadeh.

California Supreme Court

California Supreme Court

On September 23, 2008, Stephen L. Kaplan, Esq., counsel for Respondent Jameson Thottam, filed a Petition for Review with the California Supreme Court in the matter of Estate of Thottam. Therein Mr. Kaplan presented the Court with two issues to consider:

ISSUE #1: Fair v. Bakhtiari, (2006) 40 Cal. 4th 189, 192 held that subdivision (b) of Evidence Code §1123 does not waive mediation confidentiality for purported settlement agreements created during mediation that are “simply a memorandum of terms for inclusion in a future agreement.” Does the same apply to subdivision (c) of Evidence Code §1123 so that purported written settlement agreements created during mediation are inadmissible at trial if it is unclear from the face of the document whether the document is a settlement agreement or “simply a memorandum of terms for inclusion in a future agreement”?

ISSUE #2: When the parties disagree whether a writing created during mediation is a settlement agreement, is mediation confidentiality waived under Evidence Code §1123(c) by signing a mediation agreement before the mediation commences that acknowledges that mediation is confidential “except as may be necessary to enforce any agreements resulting from the Meeting” and “shall be considered privileged and, as a settlement conference, non-admissible under the
California Evidence Code in any current or future litigation between us”? [1CT(Civ) 104].

We adressed the history of the Thottam case and the Court of Appeal’s decision underlying the Petition for review on September 15, 2008. For more information, please see:  Recent Confidentiality Decisions … In a Nutshell.

We will be keeping a close eye on the filings in this case and will report back as the story develops.

Biography



Jeffrey Krivis is the author of two books: Improvisational Negotiation: A Mediator’s Stories of Conflict about Love, Money, Anger—and the Strategies that Resolved Them, and How To Make Money As A Mediator And Provide Value To Everyone (Wiley/Jossey Bass publisher). He has been a successful mediator and a pioneer in the field for twenty-five years. Krivis serves as an adjunct professor of law at the Straus Institute for Dispute Resolution. He is also an Emeritus member of the board of visitors at Pepperdine. 


Mariam Zadeh was an active trial lawyer in New York City until September 11, 2001, at which time her life was dramatically changed. She moved to Los Angeles, obtained her L.L.M. in Alternative Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine University, and became a partner with Jeffrey Krivis at First Mediation Corporation. Since joining Jeffrey Krivis, Mariam has successfully mediated employment, class actions, commercial, premises & professional liability, mass torts, medical malpractice, ERISA and other tort actions as well as matters pending on appeal. In 2007, Mariam was featured as a “Rising Star” in the Southern California Super Lawyers magazine and was profiled by the Los Angeles Daily Journal. She is a published author and frequently lectures and teaches at ADR workshops and classes throughout California.