From the Los Angeles Daily Journal

November 21, 2008

CONFIDENTIALITY QUESTION HEADED BACK TO TRIAL COURT  By Greg Katz

LOS ANGELES - The state Supreme Court has denied review of an appellate decision that had become a cause celebre for mediators concerned about confidentiality precedents.

Instead, the case will head back for a new trial that includes a dispute over whether a hand-drawn chart, created in a probate mediation and initialed dozens of times by the parties, should have been admissible as evidence.

 A trial court had said that it was not, but the 2nd District Court of Appeal overturned the decision, saying it was in effect a settlement agreement and admissible under Evidence Code Section 1123(c). Thottam v. Thottam, B196933 and B196934 (Cal App. 2nd Dist., filed Sept. 3, 2008).

Many mediators expressed concern that the appellate ruling hurts mediation confidentiality by making draft documents admissible, and the case drew amicus letters from pro-ADR lobbying group California Dispute Resolution Council and others.

But the high court Wednesday denied review. 

Tyna Orren, who won the appeal for Los Angeles-based attorney and political activist Peter Thottam, said she was happy but unsurprised that the court didn't take up the case. 

"The reason mediators don't need to be concerned is that the opinion now tells them precisely what they need to do to avoid what happened in Thottam. Nobody should sign anything which leaves an opening for anything to be divulged," she said.

The 2nd District panel reasoned that the document appeared to be a settlement agreement, and that the parties had signed a premediation agreement allowing for the admissibility of mediation evidence that supported any agreements reached. That qualified the document for an exception in mediation confidentiality statutes.

"Whether or not the document contained all necessary details for enforcement, it certainly contained adequate manifestation of mutual consent to material terms which were capable of being made certain," making it a settlement agreement, Presiding Justice Norman L. Epstein wrote for the unanimous panel.

Justices Thomas L. Wilhite Jr. and Steven C. Suzukawa joined in the opinion.

Beverly Hills-based mediator Victoria Pynchon, who closely followed the case, said it was more about interpretation of the mediation agreement than about confidentiality, that the Supreme Court has vigorously defended the state's confidentiality laws in the past.

Attorneys should rely strictly on those laws when drafting mediation agreements, she said. "Just quote the statute or refer to the statute. Don't get fancy."

Stephen L. Kaplan of Laguna Niguel's Hicks, Mims, Kaplan & Burns, who had petitioned for review, said he was disappointed but expected that the new trial would go in favor of his clients, as the first one had.

The only difference: "There'll be one more piece of evidence," Kaplan said.

greg_katz@dailyjournal.com