Enforcing a settlement agreement that has resulted from mediation proceedings can be complex.  The “mediation privilege” provides that all matters that arise in the midst of mediation negotiations are confidential.  The guarantee of confidentiality furthers the goals of honest, open dialogue that is essential to a meaningful mediation dialogue.  In accordance with the California Evidence Code, communications and agreements that occur through mediation cannot be disclosed absent a specific statutory exemption.   How then can a mediation settlement be judicially enforced in light of the confidentiality requirement?

The California Evidence Code outlines a key exception to this requirement.  It states that mediated settlements may be introduced as evidence in a judicial proceeding.  In order to do so, the mediation agreement should contain specific language to that effect.  The agreement must provide that it is:  (i) admissible in court or open to disclosure; or (ii) enforceable or binding.  Moreover, the statute provides that the parties may expressly agree in writing (or orally, to a limited extent) to disclosure of the settlement agreement in a court of law.  Finally, admissibility of a settlement agreement is permissible in order to demonstrate fraud, duress or illegality.

While the statute does not specify the wording to be implemented, the settlement agreement must be clear and unequivocal with respect to the parties’ assent to be bound to the agreement and to allow the disclosure of the settlement in a judicial proceeding.  This intent may be stated directly in the settlement agreement or in a separate agreement.  A stand-alone document providing that a settlement agreement will be admissible in court is valid even if it is executed prior to the parties actually reaching an understanding or preparing terms during mediation.

The express agreement either in the settlement agreement or ancillary document generally must be written.  Under limited circumstances, an oral agreement will be deemed enforceable, but all prior conditions must be satisfied, including (among others) having the agreement recorded by a court reporter and ensuring that terms are recited in the presence of all parties and the mediator.

If you are a party to a mediation or considering mediation to resolve your dispute, it is important to get the advice of an attorney with extensive experience in alternative dispute resolution to understand and protect your rights and interests.  Contact Shane Coons at 949-333-0900 or visit www.ShaneCoonsLaw.com to learn more about his practice.