About Us

Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

Call Your Carrier? Because of Negligent ADR Advocacy? YOU BETCHA!

That's not a summons and complaint for malpractice, is it?  Because of something you didn't know about ADR advocacy? 

C'mon!  ADR is all about avoiding litigation, not creating it, right?  The good news is that there hasn't yet been an ADR malpractice suit of note.  The bad news is, I see ADR negligence at least once a month and am holding my breath against the day lawsuits began a'poppin. 

To help you avoid ADR malpractice, here is just one of ten pitfalls to be covered in this series that can make you a malpractice magnet for disgruntled clients. 

  1. write up a "term" sheet reflecting your mediated settlement agreement without including the "magic language" of Evidence Code section 1123
    1. absent this language, a party with buyer's remorse can resist the enforcement of a "term sheet" if he feels he was was coerced into signing it; entered into it based upon a misrepresentation of material fact made during the mediation; or, that it simply does not accurately reflect the terms the parties' orally agreed upon during the mediation
    2. use the magic language of Evidence Code section 1123 and your "term sheet" should be enforced and your client's bargaining partner precluded from introducing into evidence (pursuant to section 1119) any statement made by anyone during the course of the mediation, including allegedly coercive, misleading, or, fraudulent statements of fact allegedly inducing his consent.
    3. as Orange County mediator William J. Caplan points out in his lively 2005 article, The Quick Brown Lawyer Jumped Over the Mediation Traps, the "magic words" are “admissible,” “enforceable,” “binding,” and “subject to disclosure.”
    4. the cure (from Caplan again) is the following "belt and suspenders" clause:

The parties intend this Agreement to be admissible, binding and enforceable, and subject to disclosure within the meaning of those terms in California Evidence Code § 1123 (a), (b) and (c), and this Agreement is expressly not privileged from disclosure under California Evidence Code § 1119. In addition, if the formal Settlement and Mutual Release Agreement contemplated hereinabove is [e.g., not executed within ten (10) days of the date of this Agreement] this Agreement may be enforced by motion under California Civil Code § 664.6 and the court shall retain jurisdiction over this Agreement until performance in full of the settlement terms herein.

Below is an Orange County Superior Court form that satisfies the requirements of section 664.6 (providing an expedited enforcement mechanism for the settlement agreement) but which fails to recite all of the magic words including admissible, enforceable, and subject to disclosureSo please don't trust any form other than your own!!  Even forms issued by the Courts. The fact that you are entitled to an expedited hearing under 664.6 to enforce your mediated settlement agreement does not mean that you will be permitted to enforce the agreement against your opponent's will.

SB-66 Stipulation For Settlement (CCP 664.6) - California

Of course the best way to avoid claims arising from buyer's remorse is to create a durable settlement that all parties will want to enforce.  That means avoiding agreements that your client enters into when he or she is hungry, angry, lonely (i.e., sidelined) or tired (HALT).  It also includes agreements that feel coerced by an overly aggressive mediator preying on the weaker of the two (or three or four) parties.  And yes, Virginia, there is always a more vulnerable party; all mediators recognize who that is; and, too many mediators make a beeline for that party's soft under-belly.

Another way to avoid challenges to the mediated settlement agreement include:

  • bringing a fillable template settlement agreement (and these days, also a Stipulation for the Entry of Judgment in the event of default on a payment plan) that is a complete, final and binding agreement that contains the "magic language" of section 1123 that all parties execute before they leave the mediation session (no matter how tired everyone is and how much everybody wants to just go home and deal with the inevitable nit-picking over the relatively inconsequential terms of the agreement tomorrow). 
  • not letting your fear that the "details" might blow up the "deal" you've spent so many hours negotiating.  You know how these deals go off the rails the following morning when your opponent begins to nit pick terms, often as a face-saving mechanism.  Let the mediator help you close the deal right there and now, assisting the parties in resolving the minor terms that can blow up in your face if left until tomorrow.

And speaking of tomorrow, I'll have Tip No. 2 for avoiding malpractice litigation arising from mediated settlement agreements.  Stay tuned!

For more posts on confidentiality in both California state and 9th Circuit district courts, click here.

Comments (8)

Read through and enter the discussion by using the form at the end
Joe Markowitz - September 15, 2009 1:27 PM

I agree that it is a good idea to include a reference to CCP Section 664.6 in a term sheet signed at a mediation. But I'm not sure I would agree that failure to include such language would subject a party's attorney to a malpractice claim. Parties are entitled to walk out of a mediation with a whole range of outcomes, from a completed settlement agreement, to a term sheet, to an oral understanding, to a promise to think over the other side's last offer, to a promise to see the other side in court! As long as both sides understand what they are getting at the conclusion of the mediation session, there should be no basis for a malpractice claim for any of these outcomes. If the parties choose to use a term sheet with no language in it indicating that they have settled their case, they just need to understand that any party can renege on the deal after the mediation. In some cases, that may be what the parties want, to give them some time to think the whole thing over.

Christopher G. Hill - September 15, 2009 2:14 PM

Wow! ADR negligence or malpractice. I would not have thought that this was an issue. Thanks for the heads up Vickie.

Vickie - September 15, 2009 3:44 PM

Thanks for dropping by to comment Joe and Christopher.

Joe is, of course, right that the parties are free to take any action they wish in a mediation. My only concern about potential malpractice actions is when the attorneys do NOT understand that "any party can renege on the deal after the mediation."

In my experience, most attorneys preparing term sheets do so in the belief that the case is being settled and that the other side CANNOT renege. I often hear them tell their clients that. And yet they don't include the "magic language" of section 1123.

If the opposition thereafter asserts that the deal is not in fact concluded and the parties engage in further litigation about the enforceability of the "deal points" I believe the client would have an actionable malpractice claim based upon his attorney's failure to follow the statutory procedures that would have prevented the agreement from being challenged.

The least amount of damages in such an action would be the attorneys' fees incurred in the enforcement proceedings and perhaps even the continued cost of the litigation itself if the "deal" is not enforced by the Court.

The purpose of this post is to make sure attorneys understand HOW to make sure the deal is enforceable if that's what they want to do. More than half of the attorneys I mediate cases for do NOT know the requirements of section 1123, something they should know so that they can adequately advise their clients about the consequences of the apparent "settlement" of litigation on the day of the mediation.

Debra - September 15, 2009 4:32 PM

Thanks for the great information.

I have concerns about mediators making blanket representations that "everything in medation is completely confidential."

For example, as William Caplan points out: ". . .writings such as photographs, videotapes and raw test data, which are not privileged outside of mediation because they are not created for it,do not become privileged simply because they are produced at mediation. The test is whether the writing was prepared 'for the purpose of, in the course of, or pursuant to the mediation.'”

A question for you: in community mediation without attorneys involved, how would you suggest a mediator talk about a nuanced issue such as confidentiality? Clearly, the mediator can't give legal advice, but as a mediator I don't want to make a falsely reassuring representation that "everything is completely confidential."

Thank you.
Debra Healy

Vickie - September 15, 2009 6:43 PM

You are quite right to be cautious about telling parties that "everything is completely confidential," Debra.

Section 1119 of the Evidence Code provides that "[n]o evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."

This is the anti-Miranda assurance, i.e., nothing you say can or will be used against you in a Court of Law (except possibly in a criminal proceeding).

Whether the parties can post statements made in mediation on the internet, however, is not addressed by Evidence Code section 1119 in sufficiently clear terms to provide the parties with any assurance that the information disclosed in mediation will be treated as confidential anywhere but in a noncriminal proceeding in STATE COURT (or arbitration, etc. as laid out in the statute).

Subsection (c) of 1119 broadly specifies that "[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential" but I frankly don't know what that MEANS. Confidential from whom? The general public? Your friends and family? The District Attorney? The IRS? The Los Angeles Times, Sacramento Bee or San Francisco Chronicle?

More troubling is the specter of mediation confidences being subject of discovery and potentially admissible in evidence in federal court proceedings (see Phyllis Pollack's excellent article on this issue in the first issue of The Resolver -- posted here within the past couple of weeks).

I mediate community disputes through the L.A. County Bar Association's Dispute Resolution Services Community Mediation program in West Hollywood. The parties are required to sign a confidentiality agreement that outlines the parameters of confidentiality protections between the parties as a matter of contract. Whether a breach of that contract by either party would give rise to damages is questionable but possible given the right circumstances. Non-parties won't be bound by it - only parties. And the Federal Court and criminal State Courts won't be bound by it.

If I were a non-attorney community mediator, I'd give the anti-Miranda assurance, i.e., these conversations cannot be used in evidence against you IN A CIVIL PROCEEDING IN THE STATE COURT. If your community mediation program has a confidentiality agreement that the parties must sign, I'd make sure everyone understood it (though I must tell you that most of these agreements are full of holes and ambiguities).

I prefer to leave the parties in the good hands of the California legislature and the Supreme Court's interpretation of the California Evidence Code. I, of course, cannot give legal advice to unrepresented parties so attorney mediators are not in a better position than you are to provide assurances that what is said will never be revealed. I DO tell the parties what the California Evidence Code says. I think I'm inside the bounds to do so and believe you are as well, i.e., "here's the Evidence Code provision; I'm not a lawyer (or not allowed to give legal advice in my capacity as mediator) but when I use the word "confidential" this is what I'm thinking about. If you'd like greater protection than this, you'd have to . . . sign the Confidentiality Agreement provided by the Community Mediation Center or .. . . talk to a lawyer" or agree to the terms of that agreement here and now as part of the mediation (this would be the "transformative" mediation guideline).

Doesn't this make you want to go to law school where you can twirl even more angels on the heads of ever finer pins?

Steve Mehta - September 16, 2009 10:27 AM

One of the big problems with mediator malpractice is the fact that if the parties don't put something in writing then it is all confidential and there can be no evidence presented in court as to what happened?

As a practical matter, the mediator is not the one who is putting something in writing. wouldn't it be the parties. As such, if an attorney fails to put something in writing, wouldn't that be attorney negligence, and not mediator negligence.

Vickie Pynchon - September 16, 2009 11:58 AM

Quite right Steve! I am talking about attorney malpractice arising from mediation advocacy. I suppose it might be useful to do a series on potential mediator malpractice in the future. Along those lines, I ran across an article recently that opined there could be no general standard of care for mediators, which, if true, does not speak well of our profession. As you know, I'm always urging us to dig into best practices - not necessarily as the 10 Commandments but perhaps the 5 commandments with the 20 suggestions. More later! Thanks for dropping by to comment. I'm greatly enjoying your blog!

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