(Kurtin v. Elieff (2013) 215 Cal.App.4th 455)

Parol evidence in the form of mediation communications cannot be used to interpret a mediated settlement agreement, so you had better have a crystal clear agreement if a settlement agreement is signed before you leave the mediation. The latest wrinkle on the theme that mediation confidentiality will bar evidence of mediation negotiations leading to a mediated settlement agreement is Kurtin v. Elieff (2013) 215 Cal.App.4th 455. In that Fourth District Opinion, the mediation privilege barred introduction of any mediation communications that the defendant proposed to offer to explain claimed ambiguities in a mediated settlement agreement.

The defendant took the position that the plaintiff’s assertion of the mediation privilege should result in the dismissal of the action, in the same way that a client’s invocation of attorney-client privilege resulted in dismissal of an attorney’s malpractice action. See Solin v. O’Melveny & Myers (2001) 89 Cal.App.4th 451. The Fourth District rejected the defendant’s arguments, reasoning that “[t]he Legislature decided that the encouragement of mediation to resolve disputes requires broad protection for the confidentiality of communications exchanged in relation to that process, even where this protection may sometimes result in the unavailability of valuable civil evidence” citing, Cassel v. Superior Court (2011) 51 Cal.4th 113, 136.

The court ruled that the loss of evidence in Kurtin was not nearly as compelling as the “claimed coercion from threats of criminal prosecution by the other party if he did not enter into the agreement” that had been the mediation communications sought (but not allowed) to be introduced in Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, the claimed mediation evidence of undue influence In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, or the claimed mediation evidence of attorney malpractice in Cassel v. Superior Court, supra.

The court in Kurtin concluded that the loss of evidence was an anticipated result of the mediation process, and therefore concluded that assertion of the privilege did not deprive the defendant of a fair trial.

The take-aways from these cases are 1) prepare your settlement agreement in advance of the mediation, taking into account all variations of settlement that may result if an agreement is reached; and/or 2) carefully weigh the need to get the agreement signed at mediation against the need to make sure all bases are covered before signing a binding settlement agreement at mediation.