Scott S. Markus, Esq.

markus@agreement.com

SCOTT SLATER MARKUS IS WIDELY KNOWN AS THE LAST PERSON TO GIVE UP ON A SETTLEMENT.

HE MEDIATES SERIOUS PERSONAL INJURY, EMPLOYMENT, PROFESSIONAL LIABILITY, REAL PROPERTY AND CONSTRUCTION MATTERS.

Defense's Mistakes Take Wind Out of Privilege
Daily Journal Newswire Articles, ALTERNATIVE DISPUTE RES., Nov 9, 2006
by Scott S. Markus

Regarding Joel Grossman's article about Simmons v. Ghaderi, 2006 DJDAR 13065 (Sept. 27) ("Panel Rejects Attempt to Manipulate Mediation Confidentiality," Daily Journal, Nov. 3), I think the case has little precedential value.

First mistake: Rather than object to the admissibility of mediation communications, defense counsel proceeded on the merits - i.e., that no binding settlement agreement had been reached during the mediation. Specifically, at a court hearing the day after the mediation, "Both counsel recounted the facts of the ... mediation to the court." Thereafter, defense counsel recounted all of the mediation communications in defendant's opposition to plaintiffs' motion to enforce the settlement agreement.

Second mistake: When plaintiffs' counsel asked the court if it would entertain a declaration from the mediator, defense counsel did not object.

Third mistake: The mediator signed a declaration regarding mediation communications, clearly inadmissible under Evidence Code Section 1119. See also, Evidence Code Section 1121 which provides: "Neither a mediator nor anyone else may submit to a court .... and a court may not consider any report, assessment, evaluation, recommendation or finding of any kind by the mediator concerning a mediation conducted by the mediator ... unless all parties to the mediation expressly agree otherwise in writing or orally in accordance with Section 1118." See also, Evidence Code Section 703.5 which provides: "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."

Had Dr. Ghaderi's counsel merely cited these three code sections, the trial court would have been obligated to exclude the evidence that resulted in the court's finding that the parties had entered into a binding settlement agreement. Indeed, the Court of Appeal held that "once a party voluntarily declares certain facts to be true, stipulates that she does not dispute them and extensively litigates the legal effect of such facts, she is estopped to later claim that the court must disregard those facts based upon a belated assertion of mediation confidentiality."

# # #