| Counsel can no longer assume that anything that | | | | have agreed to. (Weddington Productions, Inc. v. |
| happens, especially written notes, is protected by | | | | Flick, 60 Cal.App.4th at pp. 811-812.) The court |
| the confidentiality provision. The California Court of | | | | stated that 'There are occasions in which minor |
| Appeal in the case of Estate of Thottams ( | | | | matters in elaborate contracts are left for future |
| August 13, 2008) found that a document in chart | | | | agreement. When this occurs, it does not |
| form that was prepared during a mediation to | | | | necessarily mean that the entire contract is |
| demonstrate how assets should be allocated | | | | unenforceable.' (Id. at p. 813.) Applying these |
| between the heirs, and initials placed next to each | | | | principles, the court concluded there was sufficient |
| entry was a settlement agreement. | | | | evidence before the court to establish the |
| Counsel can no longer assume that anything that | | | | preliminary fact that the chart created at the |
| happens, especially written notes, is protected by | | | | mediation was a settlement agreement. The |
| the confidentiality provision. Even if the parties | | | | items on the chart, while lacking in formality, were |
| sign the confidentiality agreement at the beginning | | | | sufficiently clear to determine the obligations to |
| of mediation that does not mean that everything | | | | which the parties agreed. There were no |
| is confidential, aside from a Settlement | | | | complete sentences, nor formal descriptions of |
| Agreement signed by the parties. | | | | the assets being addressed, but the assets were |
| If a party produces, documents during the | | | | named in shorthand which apparently was |
| mediation, ask if this document is protected by | | | | understood by the parties. |
| the confidentiality agreement. If a party writes | | | | The court held that the chart was not a model of |
| notes on a piece of paper, ask what is the | | | | clarity, but the chart provided sufficient |
| purpose of the document and if it is a confidential | | | | information about allocation of assets to indicate |
| writing. If it is confidential, it should be destroyed | | | | the intended obligations of the parties. Whether or |
| at the end of the mediation. Further, it should be | | | | not the document contained all necessary details |
| identified in the confidentiality agreement that the | | | | for enforcement, it certainly contained adequate |
| writing is confidential. The parties or mediator | | | | manifestation of mutual consent to material terms |
| should constantly question the protection of | | | | which were capable of being made certain. |
| writings and conversations during mediation. If not, | | | | Without deciding its enforceability, the court |
| a party will find itself in the situation of the | | | | concluded that the chart constituted a written |
| Thottams. | | | | settlement agreement for purposes of Evidence |
| The California Court of Appeal in the case of | | | | code section 1123, subdivision (c). |
| Estate of Thottams ( August 13, 2008) found | | | | The lesson learned from Thottams is to question, |
| that a document in chart form that was prepared | | | | question, and question during mediation. Mediators |
| during a mediation to demonstrate how assets | | | | may not be tuned to the tricks of the parties, so |
| should be allocated between the heirs, and initials | | | | the parties should always question the intent of |
| placed next to each entry was a settlement | | | | the use of a document or writing during mediation. |
| agreement. Across the top of the chart were | | | | If a party wants to make certain that the |
| three columns, labeled with the first initial of each | | | | document is protected by confidentiality, it should |
| sibling. The chart was filled in to designate specific | | | | be noted in the confidentiality agreement. |
| allocations of the listed assets. The siblings each | | | | Mediators should control the process so that they |
| signed and dated the top of the chart in the | | | | do not get caught testifying as to the intent of |
| column with his or her initial, and initialed each | | | | the parties following mediation. Mediators should |
| entry in that column. Prior to the mediation, the | | | | have the parties sign a confidentiality agreement, |
| parties signed an agreement which affirmed the | | | | if documents are later produced, question its |
| confidentiality of the mediation except as may be | | | | confidentiality and note the document in the |
| necessary to enforce any agreements resulting | | | | confidentiality agreement. If the parties need to |
| from the Meeting. | | | | illustrate a point, use a dry ink board. At the end |
| Following the mediation, one party brought a civil | | | | of the mediation, erase what is on the dry ink |
| action to enforce what he claimed to be a | | | | board. If the parties want what was written on |
| settlement agreement reached in mediation. The | | | | the board to become embodied in a settlement |
| court found that this chart regarding allocations of | | | | agreement, have the parties draft and sign a |
| assets was a settlement agreement and was | | | | settlement agreement. |
| exempt from the confidentiality provision. The | | | | If these simple rules are followed, the court of |
| court held that the material terms of a proffered | | | | appeal will no longer have to stretch to find an |
| contract must be sufficiently certain to provide a | | | | agreement when all the parties did not intend for |
| basis for determining what obligation the parties | | | | it to operate as an agreement. |