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The Second Appellate District Revisits Mediation Confidentiality

by Phyllis Pollack
August 2010

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

On August 19, 2010, the Second Appellate District of the California Court of Appeal issued an opinion in which it upheld mediation confidentiality. In Radford v. Shehorn (Case No. 2d Civil No. B216323) ( Radford v Shehorn), the court held that it was error to admit the declaration of a mediator into evidence on a motion to enforce the settlement but that the error was harmless. Consequently, the appellate court affirmed the trial court’s ruling to enforce the settlement.

Suzanne C. Radford and Melina Shehorn are sisters and also beneficiaries of a trust created by their parents in which Shehorn was the sole trustee. After their parents died, Shehorn as sole trustee, distributed the assets of the trust. Radford filed a petition in probate court challenging the distribution. The court ordered the parties to mediation.

During the mediation, the parties settled. They entered into a two-page settlement agreement. The first page was a printed form provided by the mediator, which included a release and also stated that the agreement “. . .is binding on the parties pursuant to [Code of Civil Procedure] §664.6. . . and is admissible in court as set forth in Evidence Code §1123. . . .” This page 1 was signed by Shehorn and her attorney but not by Radford and her attorney. It was marked “Page 1 of 2.” (Id. at 2).

The second page, marked “Page 2 of 2”, was entirely handwritten, containing the substantive terms of the settlement. It was signed by both parties and their attorneys.

Thereafter, Radford took the position that she was not bound by the agreement. Shehorn filed a motion to enforce the settlement submitting separate declarations both from her attorney and the mediator, each stating that the agreement consisted of two pages, not just the second page as Radford claimed. In opposition to the motion, Radford contended that she never signed page one and was of the impression that there would be no settlement until a final typewritten agreement was signed by the parties. She further stated in her declaration that she did not receive page one until about a week after the mediation when her attorney sent it to her.

At the hearing on the motion to enforce the settlement, Radford objected to the mediator’s declaration. The trial court overruled the objection, determined that the settlement agreement did, indeed, consist of two pages and held it to be enforceable. In doing so, it relied on the declarations of the mediator, Shehorn and her attorney.

The appellate court affirmed, although it determined that the trial court should not have admitted the mediator’s declaration into evidence. Because the trial court, relying solely on the other two declarations (i.e., Shehorn’s and her attorney’s), would have still reached the same result, the appellate court found the error to be harmless.

In reaching this ruling, the appellate court cited California Evidence Code §703.5 which provides in part, that no mediator “. . .shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision or ruling, occurring at or in conjunction with the prior proceeding. . . .” The court also relied on Evidence Code §1121 providing that a mediator cannot submit to a court a report, assessment, evaluation, recommendation or finding. . . unless the parties agree otherwise. Further, the court cited Evidence Code §1123 which provides that a settlement agreement reached at a mediation may be admitted into evidence if the parties agree that it is admissible or subject to disclosure; or binding or enforceable or words to that effect. (Id. at 4-5).

Finally, relying on prior decisions of the California Supreme Court, “ “. . .broadly [applying] the mediation confidentiality statutes and . . .severely [curtailing] courts’ ability to formulate exceptions” ” (Id. at 5), the appellate court determined:

“The mediation confidentiality statutes prohibit a mediator from testifying to anything about the agreement, including the number of pages it contains. The trial court erred in admitting Hadden’s [mediator’s] declaration into evidence, but the error is harmless.” (Id. at 5).

As those in California may be aware, the Second Appellate District has routinely been finding exceptions to mediation confidentiality and just as routinely, has been reversed by the California Supreme Court. Indeed, two of its decisions (in which it decided that mediation confidentiality did not preclude evidence to be admitted of what occurred during a mediation in a subsequent legal malpractice suit) are pending review by the California Supreme Court. In sum, its batting average is well below the Mendoza line.

So. . . perhaps this time, the Second Appellate District Court got it right – probably because there was a clear statute in point: Evidence Code §703.5 prohibiting (in clear and precise language) a mediator from testifying in any subsequent civil proceeding about anything that occurred during the mediation.

The question I have – is why did the mediator even agree to submit a declaration in the first place? As a mediator and a retired judge – didn’t he know that he was not competent to testify under Evidence Code §703.5?

. . .Just something to think about!


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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