Who knows how enforceable the document would be, but mediators being forced to testify is a potential serious breakdown in the entire concept.

Recently, The Jury Expert Journal published an article suggesting that mediators need LESS training, not MORE, based upon a study of mediation practices that I believe represent the lowest level of mediator competence. I, of course, support MORE education, training, and mentored experience.

In my practical experience, mediation advocates (litigators and trial attorneys) do not know the applicable laws controlling mediation confidentiality nor the necessary requirements for the enforcement of mediated settlement agreements. My conversations with mediators do not lead me to believe that most of them are well informed about these matters either.

We badly need best practices and a general standard of care to which we can aspire (and exceed) and on which litigators can rely when they hire a mediator to help them settle litigation.

From the standpoint of someone who prosecuted and defended commercial disputes for a quarter of a century, I am confident in predicting that there will be mediator blood in the form of malpractice suits unless we get our professional affairs in order.

Here's the link to The Jury Expert article: http://www.astcweb.org/public/publication/article.cfm/1/21/5/Observations-and-conclusions-on-civil-case-mediations

I suppose the mediator here could have had some thought that his testimony could have had some beneficial effect supporting the integrity of the mediation and the resulting agreement. But I can't square that with Standard I, (Client) Self-Determination.

Plus it appears directly addressed in Standard III, Conflict of Interest, para. (i): "A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator ... from any relationship between a mediator and any mediation participant ... that reasonably raises a question of the mediator's partiality."

And Standard III, para. (vi): Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation."

I think I'd be safe in saying that more than half of all mediators practicing in Los Angeles are unaware of their existence.

What do you guys make of the following provision in the Settlement Agreement?

The parties waive the provisions of [the] California Evidence Code relating to mediation confidentiality, rendering this agreement enforceable pursuant to . . . section 664.6.”

It is not necessary to waive confidentiality in order to make a settlement agreement enforceable so long as it is in writing, but that is what they did. Not such a great idea.

Thanks for dropping by. I believe the mediator voluntarily provided the Declaration since it was submitted in support of State Farm's enforcement motion. If a Court Order had been involved, I would have expected the appellate court to note it.

As you can see from my post, I think waiving confidentiality for the purpose of rendering the agreement enforceable goes beyond bad practice and all the way to negligence on the part of the drafter IF the sole purpose for the waiver was the enforcement of the Agreement.

A term sheet or skeletal agreement drafted during the mediation itself is enforceable under section 1123 so long as the detailed requirements of that section are met, i.e., the agreement "must include a statement that it is “enforceable” or “binding,” or a declaration in other terms with the same meaning." Fair v. Bahktiari, covered in this post with a link to the case itself: http://www.negotiationlawblog.com/2006/12/articles/settlement/cal-supremes-expressly-provide-that-mediated-settlement-term-sheet-is-enforceable/

Here's a thought. I'd sure be curious to see the agreement to mediate - and what kind of contractual promises regarding confidentiality and neutrality it might contain. Makes me wonder whether Palmer, the losing party, might have both malpractice and breach of contract claims against this mediator.

By the way, I couldn't agree more about the lack of understanding on the part of mediators and lawyers about privilege and confidentiality. I've seen that all too often myself - even among mediation trainers, who frankly should know better.

I do have a question for you and your readers. I think we're all shocked to learn that a mediator here took sides - it flies in the face of the principles I think we all embrace. Putting the question of confidentiality aside, is there state law or court rule in California that would require the neutral in this case to be just that - a neutral? In Massachusetts, rules of conduct for mediators promulgated by our Supreme Judicial Court apply to mediators in court-approved programs only. They do not reach the conduct of mediators in private practice. The ACR-ABA rules of conduct for mediators cited above in the comments are aspirational only. That's why I'm asking. And this may be part of the problem - our so-called ethical standards are just smoke and mirrors. Another argument perhaps in favor of formal, state credentialing or licensing of mediators, which would mean (hopefully) better training, oversight, and disciplinary mechanisms.

Thanks again for posting about this case - and also for introducing me to your husband's blog.