A recent California Court of Appeal decision serves as a valuable refresher of several critical drafting, signing and execution concepts for settlement agreements reached at the conclusion of mediation. From the errors of counsel in the case, we can learn what might be best, or at least better, practices for counsel at mediation.

The issues addressed are:

Is a settlement agreement entered into during a mediation enforceable as to a party named for the first time in the settlement agreement? As counsel in mediation, have you looked across the conference room table during the settlement agreement drafting stage and said to opposing counsel, "Let’s add ‘E’ as a payor to this agreement" though E is not a party to the action? Likewise, during that drafting moment have you posed to opposing counsel "Let’s add ‘X’ as a releasee", though X is not a party to the action? Are these last minute additions enforceable?

Is a settlement agreement reached during a mediation enforceable against defendants under Code of Civil Procedure, section 664.6 (CCP 664.6) if the plaintiffs have not yet signed?

When does time begin to run for the payment of agreed upon sums to be paid as set out in a settlement agreement reached during a mediation?

In this very significant opinion from the California Court of Appeal, William H. Wimsatt et Al., Petitioners, V. the Superior Court of Los Angeles County, Respondent; Corey Kausch, Real Party in Interest, Court of Appeal of California, Second Appellate District, Division Three, 2007 Cal. App. LEXIS 996, filed June 18, 2007, mediation confidentiality has been further defined with respect to what conversations between attorneys are, and are not, protected by mediation confidentiality. The route the Court takes is a journey through the recent leading California cases that establish precedent in all areas of mediation confidentiality and is therefore an outstanding primer. For the sake of brevity in this article that history is provided in end notes. Along the journey the Court highlights leading cases that have also lead to an inequity to one of the parties as a result of strict interpretation of mediation confidentiality. The Court therefore recommends the legislature revise the mediation confidentiality statutory scheme to consider countervailing public policies. The Court concludes this extraordinary expedition with a warning to attorneys and parties to mediation. The opinion of the court, responding to a writ of mandate of a case in which discovery is ongoing, is written in a style of depth and breadth in anticipation of future appeal. The opinion opens many ethical issues which remain to be answered. What's next?

Is a memorandum signed by the parties at the conclusion of a mediation enforceable because the memorandum contains an arbitration provision? If one of the parties to that memorandum insists they always viewed the memorandum as a nonbinding document similar to a letter of intent regarding a proposed business relationship, is the memorandum not enforceable? Is magic language required in a memorandum signed at a mediation to make it enforceable? The California Supreme Court determined that documents prepared for purposes of mediation are generally inadmissible in civil proceedings. Evid. Code, sec 1119(b). However, a signed settlement agreement reached through mediation is exempt from this general rule if it "provides that it is enforceable or binding or words to that effect." Evid. Code, sec 1123 (b). If the document does not contain this language, the document will not be admissible nor will it be enforceable. Unless otherwise noted, all references are to the Evidence Code.

In an action by the seller of real estate against the seller's broker, the Court of Appeal (Fifth Appellate District) in an unpublished opinion affirmed the trial court's award of attorney fees to the seller where the seller sought mediation after filing suit and notice of pendency of action against the broker and others, and where the mediation condition in the listing agreement requires pre-dispute mediation to recover attorney fees. This opinion further clarifies the meaning and significance of enforceability of pre-dispute mediation language in what is probably the most frequently used listing agreement between California real estate brokers and their clients.

Emotions happen in negotiation. Rather than getting caught up in the emotions, which contributes to unproductive negotiation, "Beyond Reason" by Roger Fisher and Daniel Shapiro, urges us to focus on what is stimulating these emotions in you and in the other negotiator, in order to have productive negotiations. The authors describe the sources of emotions as "core concerns". Addressing and meeting these core concerns leads to positive emotions, a frame of mind more prone to cooperating, thinking creatively and therefore problem solving.

California Court of Appeal enforces settlement agreement entered into at conclusion of mediation, even though the agreement was not signed by all parties. This new (December 20, 2005) and landmark case has very significant interpretations concerning enforcement of settlement agreements through Cal. Code of Civil Proc. section 664.6 and motions for summary judgment through section 437c

How do other jurisdictions treat critical mediation issues of mediation confidentiality, ethics of disclosure of policy limits, and the public policy of the same person serving as mediator and special master? Do the recent cases discussed below give us a glimpse into the future of mediation, or a look into the past?

At the conclusion of a successful mediation, how should the settlement be documented? Is a memorandum of understanding sufficient or is a complete settlement agreement preferred? More specifically, to what degree must either format reflect "the parties all agreed 'upon the same thing in the same sense'" in order to be enforceable? Does reciting Code of Civil Procedure, Section 664.6 in a memorandum of understanding assure enforceability?

"The new provision barring recovery of attorney fees by a prevailing party who refuses a request for mediation means what it says and will be enforced."

Early Case Management, ECM, is an efficient and economical opportunity for counsel who want to make progress in moving a case toward resolution. ECM can be used to facilitate the voluntary exchange of information, documents and other things, scheduling discovery and most any other matter required by Calif Rules of Court 212 and FRCivP 16, in addition to issues not contemplated by those case management rules. If service to your client means progress toward resolution, use Early Case Management to provide the best service. Much of this article is the product of interviews with many attorneys and mediators.

"The Vanishing Trial" was one of the most reflective and insightful segments of the April 2004 CPR Institute for Dispute Resolution Conference. We, as litigators, and as neutrals, have noticed changes in the number of cases resolved in mediation. Fewer cases are going to trial. In luminescent detail "The Vanishing Trial" brought into clear focus a phenomenon that has caused a dramatic cultural change in all aspects of the conflict and dispute resolution system. The phenomenon has had its impact upon judges, attorneys and parties.

"Conflict Wisdom" (periodically updated)

Does "conflict wisdom" exist? Hear what Mahatma Gandhi, Kofi Annan, Baruch Spinoza, Sun Tzu, Marcel Proust, Omar Bradley, Woody Allen (humorous wisdom?), Janet Jackson (hip wisdom?) and others say on the subject. Too heavy for you? At the end of the thought provoking wisdom is a tantalizing, sweet answer to the one question more important than "What is the meaning of life?" and bigger even than "Who am I?"

What are the toughest issues attorneys face in the relationship with their clients in the negotiation and mediation environment? How do attorneys successfully deal with the conflict in keeping the client happy, and keeping the client, versus the need to counsel and discuss with the client the hard issues the client doesn’t want to talk about? This article is largely the product of interviews with attorneys who have candidly shared their experiences and collective enormous expertise in successfully resolving their clients’ disputes in mediation.

"Avoiding Impasse in Mediation -- A Critical Checklist For Mediation Counsel", Alternatives, CPR (Center for Public Resources) Institute for Dispute Resolution, May 2001. Also published as Chapter 24, Mediation: Approaches and Insights, Juris Publishing, 2005

Though there are many basic axioms required for a successful mediation, forget an essential ingredient and the dispute can easily impasse. This is a summary of the most critical elements necessary to avoid impasse. Even though attorneys who have considerable experience in mediation may be aware of the majority of these elements, learning the additional 25%, and becoming acutely aware of the myriad of subtleties of the other elements discussed in this article, will immensely increase the likelihood of a successful mediation.

The recent court decisions of Foxgate and Olam have created exceptions to mediation confidentiality. How will these cases effect future mediations? What are attorney’s choices now? How have these cases changed Fisher’s mediation procedures? Take part in the debate: respond to an important survey.

On April 17, 2000, the California Supreme Court rendered two decisions affirming arbitrator awards which denied attorney fees in the presence of attorney fee provisions in the underlying contracts. These decisions should impact counsel’s determination of whether to arbitrate or resolve a contract claim when the contract contains an attorney fee provision.

"All You Need to Know About Mediation But Didn't Know to Ask -- A Parachute for Parties in Litigation" Business Law News, the State Bar of California, Business Law Section, Fall 1998 Also published in Alternatives, CPR (Center for Public Resources) Institute for Dispute Resolution, March 1998. Also published as Chapter 28, Mediation: Approaches and Insights, Juris Publishing, 2005

This article explains in plain English what mediation is, how parties can make it work to settle disputes, and avoid the nightmare of trial. This article may be provided to parties to mediation to assist them in preparing for mediation.

"Creative Mediation Design," Los Angeles Lawyer. This article describes several different forms of mediation.

Before the pre-mediation telephone conference, the attorneys are suggested to discuss these concepts with their clients and consider obtaining authorization from their clients to use one or more alternatives to traditional mediation described in the article.

Alternative Dispute Resolution NEWSALERT.

How do you deal with emotional issues in multi-party disputes without too much attorney waiting time? What do you do when a defendant refuses to contribute unless it knows what other parties are contributing? Is it possible to wage war and peace at the same time? Document the Settlement - "DO WE HAVE TO?"

Mediation's dozen valuable benefits to litigators, and where mediation will likely go in the next ten years, or maybe tomorrow.