To state the obvious, many disputes end up in court. In such “litigated cases”, not only the parties but the attorneys attend the mediation. Everyone there is hoping that a settlement will be reached. But, for that settlement to endure, it must be based on “informed consent” or with full knowledge of all of the facts. It must be the client, not the attorney, who is making the decision to settle under the agreed upon terms provided and only after the client has been fully informed of all of the facts and all of the alternative courses of action.
 

      In my experience, every once in a very long while, a litigant will look to her attorney to actually make the decision whether to accept the terms of a particular settlement. The attorney is performing a disservice to the client by agreeing to make that decision. Rather, the attorney should engage in a candid, honest and frank discussion with her client regarding the strengths and weaknesses of the case and the relative merits of the alternative courses of action available and urge the client to make the ultimate decision. In such a give and take discussion, both the client and the attorney will obtain a better understanding of the other’s viewpoint. Such an in depth discussion will allow the client to truly deliberate on her fate and make an honest assessment of her available choices. Only in this way can her consent be truly informed and can any settlement be truly long lasting.
 

      . . . Just something to think about. 

       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.
 

       Many of us have heard of the Americans with Disabilities Act or the Rehabilitation Act of 1973 and have learned that each requires employers and public facilities to make reasonable accommodations for participants with disabilities.
 
       But few of us realize or have stopped to think that each also applies to the mediation process. In a 10 page summary issued in May 2005, the U.S. Equal Employment Opportunity Commission provides questions and answers on how mediators and participants can ensure that the mediation process is accessible to participants with disabilities. These accommodations can be as simple as taking more frequent breaks during a mediation, ensuring that an interpreter or reader is present to assist the hearing or visually impaired participant or allowing the process to proceed at a slower pace so that the participant with a disability can fully understand and follow the dynamics of the process. 
 

      To me, the most important thing that this summary emphasizes is not to be bashful about this subject. Many disabilities are not apparent (e.g. diabetes or sensitivities to temperatures or chemicals). Thus, a mediator in her intake procedure should ask if any of the participants require reasonable accommodations. In turn, the participants should honestly and candidly answer the question, and if the mediator does not ask the question, they should volunteer the information.
 
       In providing such information, the participant should explain in detail what she needs to assist her in participating in the mediation in a meaningful manner because more times than not, the mediator will be in unfamiliar territory. Likewise, once advised that reasonable accommodations are required, the mediator should not be bashful about finding out more or exactly what is needed by the participant and then modifying the process as needed to enhance everyone’s participation.
 
       This candor should continue throughout the mediation. As the day proceeds, the participants should not be bashful in letting the mediator know whether any adjustments in the procedure are needed. Likewise, the mediator should take advantage of the separate session to inquire whether any changes are needed and to insure that each party is fully participating in the process.
 
       Everyone in a mediation wants to see the process go smoothly and end in resolution.  Where both the mediator and the participants are candid about the needs of those with disabilities and accommodate those needs, such sensitivity and responsiveness will greatly help the parties in reach a resolution.
 
       . . . Just something to ponder.

       We have all heard that men’s brains are “wired” differently than those of women. But have you stopped to think what this means? Or, look around you to see how this gets translated into real life?
      

      In a thought provoking article, Jan Frankel Shau, 2006 President – Elect of the Southern California Mediation Association noted that in a communication setting, women will use “rapport talk” while men will use “report talk.” Thus, a woman will communicate or use conversation “to build relationships, establish connections and to share experiences.” Men, though, will use conversation to share information. They listen to the “report” being given to them and then act on it by attempting to “fix the problem.”
 

      Apply this to the context of a mediation. I, as a female mediator, will use small talk or “rapport talk” to build relationships, establish connections and build trust with the parties. A male mediator, on the other hand, will converse with the parties to understand the issues and the dispute with the view of assisting the parties in “fixing the problem.” Consequently, although my approach as a female mediator is different than that of my male colleague’s, we are both seeking the same end result: to assist the parties in “fixing” the problem.
    

      So. . . the next time you attend a mediation hosted by a woman, do not be fooled by her “small talk,” Her indirect approach does have a purpose; there is, indeed, “a method to her madness.”
       . . . Just something to ponder. 
 

      I am a dog lover. Anyone who knows me to any degree knows this. I sometimes think that there are lessons to be learned from our four legged friends. Thus, when I saw that the California Supreme Court decided a dog bite case in favor of the dog, I had to read and comment on it. In Priebe v. Nelson, (2006) 39 Cal. 4th 1112, the California Supreme Court held that Plaintiff Marta Priebe, a commercial kennel worker whose foot and ankle were mauled by Mugsey, one of her charges (a pit bull) who was boarding at the kennel, could not  recover damages from Mugsy’s owner, Russell Nelson. Even though California has a strict liability statute covering dogs that bite – Civil Code §3342 - the California Supreme Court held that the statute did not apply due to the “veterinarian’s rule” which, in essence, is an “occupational assumption of risk” rule. That is, given the nature of Priebe’s occupation and employment as a kennel worker, she, like the veterinarian, had assumed the risk of being bitten by dogs while “on the job.” As a result, the owner of the dog – Russell Nelson – was exempted from liability under this statute (although he may still face common law strict liability for Mugsey’s proclivities).
 

      The Supreme Court based its decision on various public policies. One of these, borrowed from the Louisiana Court of Appeal, applied a “risk-utility balancing test” analyzing which was more important: the unreasonable risk of harm to a plaintiff from a dog that might bite or “the utility of allowing dog owners to board their pets and have trained technicians care for the animal while the owner is out of town.” (Id. at 24).
 

      The Louisiana Court of Appeal thought it more important or that it would further serve public policy to encourage dog owners to use licensed commercial dog kennels without the threat of liability than to allow suits for damages in such situations.
 

      So. . .you ask – what does this have to do with mediation? Not much really except for the notion of “public policy.” Like the veterinarian rule exempting the dog owner from the “dog bite statute,” mediation has its exemptions predicated on public policy. First and foremost is confidentiality. While everything else about the dispute may be public knowledge, the mediation is not. Nothing can be disclosed outside of the mediation absent consent of the parties. Even the fact of the mediation cannot be referred to in a subsequent trial (California Evidence Code §1128). Most importantly, the mediator normally cannot be compelled to testify or produce a writing regarding the mediation: both her lips and writing tablet are sealed. (California Evidence Code §§ 703.5 and 1127.)
 

      What is the public policy behind this? The California legislative extensively set it out in California Civil Code §1775 (operative January 1, 1999):
        (a) The peaceful resolution of disputes in a fair, timely, appropriate, and cost-effective manner is an essential function of the judicial branch. . .
        (b) In the case of many disputes, litigation culminating in a trial is costly, time consuming, and stressful for the parties involved. Many disputes can be resolved in a fair and equitable manner through less formal processes.
        (c) Alternative processes for reducing the cost, time, and stress of dispute resolution, such as mediation, have been effectively used in California and elsewhere. In appropriate cases mediation provides parties with a simplified and economical procedure for obtaining prompt and equitable resolution of their disputes and a greater opportunity to participate directly in resolving these disputes. Mediation may also assist to reduce the backlog of cases burdening the judicial system. It is in the public interest for mediation to be encouraged and used where appropriate by the courts.
        (d) Mediation and similar alternative processes can have the greatest benefit for the parties in a civil action when used early, before substantial discovery and other litigation costs have been incurred. Where appropriate, participants in disputes should be encouraged to utilize mediation and other alternatives to trial for resolving their differences in the early stages of a civil action.
. . .
        (f) The purpose of this title is to encourage the use of court-annexed alternative dispute resolution methods in general, and mediation in particular. It is estimated that the average cost to the court for processing a civil case of the kind described in Section 1775.3 through judgment is three thousand nine hundred forty-three dollars ($3,943) for each judge day, and that a substantial portion of this cost can be saved if these cases are resolved before trial. . . . 

      In sum, the public policies behind mediation are to save time and money, and avoid stress in a fair, timely, cost-effective and efficient manner.
 

      So. . .the next time someone asks you if you are interested in going to mediation
. . . say “yes,” if only to support “public policy.”
       . . . Just something to ponder.