Who is a “Mediator”?

A few weeks ago, some rulings of the Honorable Holly E. Kendig, Judge of Los Angeles County Superior Court, made the headlines in the local legal newspapers. Those rulings which among other things dismissed the case, were predicated on an earlier ruling which answered the question, “who is a mediator” and discussed mediation confidentiality. ( 2015-06-24-Ruling-on-Plaintiff_s-Motion-to-Compel-Further-Responses-to-I… ) At issue in the case (Wolf v. Loring Ward International, Ltd. et al, Los Angeles County  Superior Court Case No. BC 445310) was future profit participation in the broadcast of the television show, Law & Order produced by Dick Wolf.

As part of the divorce between plaintiff Christine Wolf and her ex-husband Dick Wolf, they mediated the distribution of the community assets. One of those assets was the Law & Order franchise valued at $8 million. Only after Ms. Wolf signed the settlement agreement, did she learn that Mr. Wolf was about to make a $1.6 billion deal with NBC to participate in the profits resulting from broadcasting this series over three years.

Although she sought to void the settlement agreement, Dick Wolf successfully moved to enforce it. Thus, Ms. Wolf filed a new action alleging that the settlement agreement should be voided because Martin Weinberg who acted as the intermediary between them in forging the settlement agreement was not a mediator but was biased and not neutral such that the parties did not attend a true “mediation”.

For many years, Robert Philpot had been the couple’s business manager, financial adviser and accountant. After Ms. Wolf asked for a divorce, she was on the telephone with Mr. Weinberg who suggested that “he advise the couple on the value of ‘the assets of the community estate’ and propose property settlement terms with the aim of arriving at a ‘fair and equitable marital property settlement on an amicable basis’ and avoiding ‘contentious litigation….’” (June 24 Ruling at 2.) (2015-06-24-Ruling-on-Plaintiff_s-Motion-to-Compel-Further-Responses-to-I…  ) At the time, Mr.  Weinberg was the chairman of Assante, a Canadian corporation, hoping to obtain business from the Wolfs. He had no mediation experience or training.

Upon the Wolfs’ agreement to this proposal, Mr. Weinberg contacted Mr. Philpot and obtained the financial information. He then prepared a detailed financial analysis and a “term sheet” for a proposed property settlement agreement. After several months, an agreement was reached and signed by both parties.

In ruling that Mr. Weinberg was, indeed, a mediator, the trial court took note of what the parties did agree upon: they jointly engaged Mr. Weinberg to act as an intermediary to facilitate a marital settlement agreement between them. The parties also agreed that Mr. Weinberg both asked for and obtained their respective consents to go forward as a mediator before embarking on same.

The trial court then looked to California Evidence Code section 1115(b) which defines a “mediator” to mean “…a neutral person who conducts a mediation….” Looking at the Comment by the California law Revision Commission to this section, the trial court found the focus to be on the “person’s role”, or “on what the mediator can and cannot do” (Id. at 6) and NOT on the person’s title.  (Id. at 7.) Noting that “mediation” is defined as “… a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement” (Evidence Code Section 1115(a)), the court noted that focusing on the “role” of the “mediator” rather than the title made sense. (Id. at 7.)

As added support, the trial court pointed out that prior to passing this Evidence Code section, the Legislature considered and rejected a requirement that a mediator make prior disclosures that might show bias or prior conduct/relationships with the parties. To the court, this rejection indicated that mediation confidentiality would apply in a wide range of contexts including community mediations, peer or student mediations or other types involving repeat players. (Id. at 7- 8.) To the court, a party could have a pre-existing relationship with one or more of the parties and still be a “mediator” and the process still be called a “mediation”. (Id.)

Although the Legislature may not have required prior disclosures of pre-existing relationships, or of any biases, or potential conflicts of interest, certainly the California Rules of Court do in connection with court annexed mediations (Rule 3.855), as do the Model  Standards of Conduct For Mediators (Standard III – Conflict of Interest ).

But, the “take away” from this ruling is a simple one; a mediator is not defined by her title, education, training, background, diplomas, certificates, or degrees, but simply by the role she plays in helping the parties to voluntarily reach an accord. Has she facilitated the resolution of a matter in an impartial, non-coercive manner? If so, she is a “mediator”, no matter what her “title” may be! Plain and simple!

… Just something to think about.

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By |2017-05-13T07:42:47+00:00May 13th, 2016|Court Cases|0 Comments

About the Author:

Phyllis Pollack
Phyllis G. Pollack, Esq. the principal of PGP Mediation (www.pgpmediation.com), has been a mediator in Los Angeles, California since 2000. She has conducted over 1700 mediations. As an attorney with more than 35 years experience, she utilizes her diverse background to resolve business, commercial, international trade, real estate, employment and lemon law disputes at both the state and federal trial and state appellate court levels. Currently, she is the in­coming chair of State Bar of California’s ADR Committee. She has served on the board of the California Dispute Resolution Council (CDRC) (2012­2013), is a past president and past treasurer of the SCMA Education Foundation (2011­2013) and a past president (2010) of the Southern California Mediation Association (SCMA). Ms. Pollack received her BA degree in sociology in 1973 from Newcomb College of Tulane University and her JD degree from Tulane University School of Law in 1977. She is an active member of both the Louisiana and California bars. Pollack believes that it is never too late to mediate a dispute and recommends mediation over litigation as it allows the parties to decide their own solutions.