Mediation Law Takes Turn For The Worse

The California case of Simmons v. Ghaderi is upsetting all we thought we knew about mediation. A few quotes from the case:
"In Dr. Ghaderi's trial brief she argued that the mediation confidentiality rules codified in Evidence Code section 1115 et seq., and in particular Evidence Code section 1119, made inadmissible all evidence of an oral contract. Dr. Ghaderi argued, 'the law of the State of California does not permit discussions at a mediation or documents generated thereat to be introduced at trial to prove that an agreement was created there.' Dr. Ghaderi filed a formal objection to plaintiffs' evidence in which she objected to 'any and all testimony and/or documentary evidence concerning the any [sic] mediation held in this action . . . pursuant to California Evidence Code, section 1119, et seq. and Ryan v. Garcia (1994) 27 Cal.App.4th 1006.' Dr. Ghaderi asserted that plaintiffs could not prove the existence of an oral contract to settle the medical malpractice case because any proof would violate the confidentiality of mediation." Nevertheless, an oral agreement was upheld, even though Dr. Ghaderi had revoked it prior to any agreement being signed.
Judge Aldridge's dissent sets forth the law as every lawyer and mediator I know believes it to be. It will be interesting to see if appellate courts in other states will entertain such challenges. What went really wrong here was the attempt (even though successful) to enforce a mediated agreement that was not memorialized. Mediation is not finished until there is a signed agreement.
You Say Estoppel, I Say Waiver; let's call the whole thing wrong -- another look at Simmons v. Ghaderi is Victoria Pynchon's post. I would have chalked this case up to mediation being new (in the slow moving area of law) but for Vickie's comment: "As a different panel in the same District ruled just three years ago in Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, 360, 'parties to mediation proceedings cannot impliedly waive the protections of the mediation confidentiality statutes contained in sections 1115

et seq. Id. The parties can't waive that right by failing to object to the admission of confidential mediation communications in Court. Id. They can't waive that right by disclosing a substantial part of those communications in support of their own motions. Id. And they can't waive that right by litigating the enforceability of a mediated oral agreement. Id."
This case proves the point that even in ADR law practices there is a need for good appellate advocacy. This is/was a good case for a higher court to decide with amicus curiae adding some scholarship to the mix.