What happens when Evidence Code section 1115, et seq. (the "mediation privilege"), collides with an allegation that an enforceable, oral settlement agreement was reached during a mediation? The mediation privilege steamrolls the allegation. This is true even where a party stipulates to events at the mediation, submits evidence of events at the mediation, and then, at trial invokes the mediation privilege for the first time.
In Simmons v. Ghaderi (July 21, 2008), the Supreme Court held "that the Court of Appeal improperly relied on the doctrine of estoppel to create a judicial exception to the comprehensive statutory scheme of mediation confidentiality and that the evidence relating to the mediation proceedings should not have been admitted at trial." After reciting the policy behind the mediation privilege, and the basic rule of inadmissibility, the Supreme Court set forth the very particular requirements for admissibility of mediation statements:
“Sections 1122 and 1124 specifically lay out exceptions for the admission of evidence produced during mediation. As relevant here, section 1122, subdivision (a)(1) provides that “[a] communication or a writing . . . that is made or prepared for the purpose of, or in the course of, or pursuant to, a mediation or a mediation consultation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if . . . the following condition is satisfied: [¶] (1) All persons who conduct or otherwise participate in the mediation expressly agree in writing, or orally in accordance with Section 1118, to disclosure of the communication, document, or writing.”
(Slip op., at p. 8.) When entering into a mediation of a complex matter or class action, take note of sections 1122 and 1124. If a settlement is reached, generate a memorandum of understaning on the spot and include a provision allowing disclosure of the document, signed by all parties.
The Supreme Court then spent another 8 or so pages of opinion discussing all the reasons why the mediation privilege is nearly impenetrable, what the Legislature intended, and so on. A certain momentum (coupled with repetition) was building at this point in the discussion. Then the Supreme Court discussed the highly limited scenarios where a policy consideration would overcome the privilege (such as where a child's due process right to confront a witness would be impeded). After all of that, the Supreme Court then said:
“Despite the clear legislative intent, the Court of Appeal majority nonetheless estopped the defendant from invoking mediation confidentiality because she herself used and did not object to plaintiffs’ use of evidence describing the events of mediation.
(Slip op., at p. 16.) At this point, it doesn't look too good for you if you are the Court of Appeal majority. Thereafter, the Supreme Court concludes that implied waiver of the mediation privilege does not exist. (Slip op., at pp. 22-23.)
Again, don't leave a mediation where a settlement was reached without at least memorializing the major terms in writing, with a waiver of the privilge to the full extent necessary to effectuate and enforce the settlement.