Hat Tip to Mia Farrow, October 8, 2008.

No man is an island, entire of itself; every man is a piece of the continent, a part of the main.  If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were; any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.

John Donne (1572-1631)

The November 2007 "confidential means confidential" post on this site includes a link to attorney Michael Young's web page, which chronicles the consequences of breaching mediation confidentiality in the Florida case of Doe, et al vs. Joseph R. Francis et al..  "Girls Gone Wild" founder and defendant Joseph Francis has now filed suit in Los Angeles Superior Court to set aside the mediated settlement of that now almost 5-year-old case.  CPR picks up the story here.

 A study of 2,054 cases that went to trial from 2002 to 2005, concludes that parties can, and more often due, win without fighting.

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant's offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial - meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

Read the entire article here.

In 1984, the . . . Soviets were recruiting countries to retaliate for the United States’ decision to stay away from the 1980 Moscow Games, a boycott that 61 other countries joined. The Soviets announced on May 8, 1984, that their team would not come to Los Angeles because of fears for their athletes’ safety, claiming they had agreements from 100 countries to do the same.

Ueberroth said he saw the list. At the top was China.

His response was to assemble a team of envoys who could appeal to officials in undecided countries and persuade them to come. [Charles] Lee, a federal prosecutor in Los Angeles who is not Chinese but speaks fluent Mandarin, took a small group to China. Ueberroth asked a woman on his staff, Agnes Mura, to lead a group to Romania; she had been born there. Ueberroth went to Cuba.

“People think of the Olympics as a corporate structure,” said Bob Ctvrtlik, who played for the United States volleyball team at the ’84 Games and is now a member of the International Olympic Committee. “It really is not. It relies on relationships. It relies on trust. It relies on people who can cut through cultural differences and find common ground. That was the brilliance of that program.”

Ueberroth was unable to sway Fidel Castro — he keeps a framed copy of a headline from an article in The Los Angeles Times that read, “Ueberroth Strikes Out in Cuba.” But Lee’s visit was a triumph, and Mura delivered the perhaps more stunning news later in May that tiny Romania would defy the Soviet boycott.

Only 14 countries boycotted the 1984 Games. 

Current U.S. Olympic Committee Chairman Ueberroth believes that China’s agreement to attend the 1984 Olympic Games in Los Angeles saved not only the 1984 Games, but all the ones to follow. 

China’s attendance was obtained by intermediaries, through meetings, and conversation.

On July 21, 2008, the California Supreme Court confirmed for the third time that, in matters within the jurisdiction of California state courts, mediated in accordance with California law, confidential means confidential.

Simmons vs. Ghaderi (2008) — Cal.Rptr.3d –, concerns the mediation of a medical malpractice suit.  During mediation, the defendant’s medical malpractice insurance provider arrived at settlement terms with plaintiffs, which terms were orally accepted by the plaintiffs and placed in a written settlement agreement for the parties to sign.  The defendant, however, revoked her consent to settle and left mediation without signing the settlement agreement. 

In opposing plaintiffs’ Code of Civil Procedure section 664.6 motion to enforce what they contended was an oral settlement reached in mediation, the defendant argued that no enforceable settlement was reached because she had not signed the written settlement agreement and had withdrawn her consent to settlement.  But the defendant did not object to consideration of the evidence of what had occurred in mediation.  The trial court denied plaintiffs’ motion to enforce settlement, finding that the requirements of CCP section 664.6 had not been met, but suggested that, alternatively, an enforceable oral contract may have been reached during mediation.

At the trial of what was limited to the defendant’s alleged breach of an oral settlement agreement reached during mediation, the defendant did object that the mediation confidentiality statutes precluded plaintiffs from proving the existence of an oral settlement agreement.  Plaintiffs’ evidence of what had occurred at mediation, however, was admitted over the defendant’s objection and the trial court concluded that plaintiffs and defendant’s agent had, indeed, entered into a valid, enforceable oral contract before the defendant withdrew her consent.  The Court of Appeal affirmed the trial court’s judgment, finding that the defendant was estopped from asserting mediation confidentiality by her own failure to object and her use in pretrial motions of the evidence of what had occurred during mediation.

In reversing this decision, the California Supreme Court unanimously found that the Court of Appeal had improperly relied on the doctrine of estoppel to create a judicial exception to the statutory requirements of confidentiality in mediation proceedings.  Agreeing with the Court of Appeal’s dissenting opinion that this case is more accurately described as an implied waiver by conduct case, than an estoppel case, and finding that implied waiver does not apply to mediation confidentiality, the Supreme Court held, unambiguously, that:

Here, the mediation confidentially statutes made inadmissible all evidence of an oral contract between plaintiffs and defendant during mediation.

In California, confidential means confidential.

See Simmons vs. Ghaderi here.

Copyright © 2008 by Kevin K. Forrester. All rights reserved.   

In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 17A.

Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action…. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.

Economist.com describes the "discreet charms of the international go-between."

Economist.com

We must all hang together, or assuredly we shall all hang separately.

Benjamin Franklin (1706-1790)

1776 - at the signing of the Declaration of Independence

Patriot Post.