Friday, December 15th, 2017

Mediation Confidentiality Reinforced in Provost Case

January 24, 2013 by  
Filed under Newsletters

The San Francisco Bay Area Mediation Office of Kevin C. Coleman carefully monitors legislation and case law affecting mediation confidentiality and attorney-client privilege. Mediation confidentially is required to maintain the open and candid environment necessary for satisfactory dispute resolution. After the California Supreme Court held there are no exceptions to the mediation confidentiality statute in Cassel v. Superior Court, 51 Cal. 4th 113 (Cal. 2011), this holding was reinforced in Provost v. Regents of the University of California, et al., 201 Cal. Ct. App. 4th 1289 (Dec. 14, 2011).

Facts and Procedural History of Provost

Provost brought an action against his former employer, defendant Regents of University of California (Regents) and two defendant physicians. Mediation resulted in a stipulated settlement signed by plaintiff, one of his three lawyers, Regent’s in-house attorney and the defendant physicians’ attorney. Per the stipulated settlement, the final settlement agreement needed to be drafted and finalized for entry as Judgment.

While the final agreement was being prepared, plaintiff attempted to be relieved of having the stipulated settlement enforced against him. He raised two issues that dealt with mediation confidentiality: he alleged his attorneys coerced him to sign the mediated agreement, and that the stipulated settlement was confidential and inadmissible in court. He then refused to sign the final settlement agreement.

The defendants filed a CCP § 664.6 motion to enforce the settlement, on which they prevailed and the trial court entered the settlement as judgment. Provost appealed.

Alleged Coercion and Duress Does Not Break Confidentiality

The Court of Appeal rejected all of Provost’s arguments against enforcement of the settlement agreement. The court refused to allow evidence of coercion proffered by Provost due to mediation confidentiality found in the California Evidence Code § 1119. This section prevents the disclosure of anything said or any admission made for the purpose of, in the course of or pursuant to mediation in subsequent court litigation.

The court did not agree with Provost that egregious “conduct” of the attorneys was not subject to mediation confidentiality—the court rightly noted that Provost sought to introduce communications, not conduct. The court cited Cassel in holding that mediation confidentiality prevents disclosure of all communications during a mediation, even private attorney-client communications for use in a subsequent malpractice case. The court rejected Provost’s plea to carve out an alleged “good cause” exception to this confidentiality.

Written Settlements Can Be Excluded from Mediation Confidentiality

A written stipulated settlement is admissible pursuant to Evidence Code Section 1123 if it is signed by the parties and states it may be disclosed or admitted, or if it states it is binding or enforceable. As the written settlement in Provost stated it was both binding and admissible, thus, Provost’s final argument was rejected.

Strong Public Policy Supports Mediation Confidentiality

In rendering the Provost decision, the California courts once again reinforced the strong public policy in favor of encouraging mediation. Mediation confidentiality allows attorneys and their clients to speak candidly to each other and the other side without fear of subsequent disclosure, and this creates environments ripe for satisfying and mutually beneficial settlements.

Kevin Coleman is a certified mediator who performs mediation services throughout the San Francisco Bay Area, including San Francisco, Marin County, Alameda, Contra Costa, Sonoma, outlying counties and throughout the state.

Contact Bay Area mediator Kevin Coleman online or by calling 415-488-7609.

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