In Simmons v. Ghaderi, 2006 Cal. App. Lexis 1505 (California Court of Appeal, Second Appellate District, September 27,  2006), the fundamental tenets of consent and mediation confidentiality collided. In this wrongful death action, the plaintiffs, representing the deceased, attended a  mediation with defendant Lida Ghaderi, M.D. and her malpractice insurer. At the beginning of the mediation, Dr. Ghaderi provided her insurer with a written consent to compromise the matter for a sum not exceeding $125,000. The Honorable Robert T. Altman, retired, was the mediator and obtained plaintiff’s agreement  to settle for $125,000. Upon being told that plaintiff agreed to settle, Dr. Ghaderi orally reneged on her consent and left the mediation.
      

       The issue before the appellate court was whether the mediation confidentiality provision in California Evidence Code Section 1119 precluded the court from even considering and determining whether an enforceable oral settlement had been reached. The majority concluded that the mediation confidentiality provision should not be applied here, for to do so, would “exalt form over substance.” (Id. at 20). The majority found that no “purpose or rationale of the mediation statute” would be served by applying it:
     

       ”recognition  of mediation confidentiality in   thiscase would nothelp to ensure open communication in mediation; but it wouldallow a disgruntled litigant to use the shield of mediation confidentiality as a convenient place behind which to hide facts, although indisputably true, she no longer believes are favorable. ” Id. at 21.

       In contrast, Justice Aldrich, dissenting, believed that mediation confidentiality precluded any consideration by the court of what occurred during the mediation and any determination of whether an oral agreement of settlement had, indeed, been reached. In the dissent’s view, all such evidence was simply and plainly inadmissible: the trial court could not even entertain plaintiff’s claim that it settled.
     

       To me, this case illustrates a collision of public policies. On the one hand is the policy of not allowing a party “to trifle with the courts” (Id. at 20) by hiding behind a shield of mediation confidentiality to escape the legal consequences of undisputed true facts. On the other hand is the public policy behind mediation: that it is confidential so that there can be ‘a candid and informal exchange regarding events in the past. . . ’ which can be achieved “only if the participants know that what is said in mediation will not be used to their detriment through later court proceedings. . . .” Id. at p. 36-37 (dissent).
 

      Whether the majority or the dissent espouses the “truly” “correct” view, I do not know. It just indicates to me that while mediation confidentiality is considered to be fundamental to the mediation process, it and the public policies behind it do not exist in a vacuum. Every once in awhile, this basic tenet of mediation may collide with and be forced to give away to other “fundamental” tenets. When, how or why this will occur is known only to judges and to those with crystal balls. . . . But it is something to give pause to and to consider.
 

      . . . Just another one of life’s lessons to think about.
 

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